1.1 – BVerfG 1 BvR 591/08, 1 BvR 593/08 from March 16, 2011
Full crediting of the injury pension towards Hartz IV benefits.
This was not to be expected otherwise, because there is sufficient reason for the "unequal treatment" and the complainants have not claimed that they would have been entitled to compensation for pain and suffering from the employer if there had been no liability privilege on the part of the employer.
In addition, the legislature is fairly free as to which income it excludes from the calculation. These are in particular cases of sacrifice for the common good or closely related offenses. Ie basic pensions for war and military service injuries, as well as victim compensation. Here the state was unable to adequately protect its citizens from harm. The case with accident pensions is different because the state is generally not involved.
1.2 – BVerfG of March 24, 2011, – 1 BvR 1737/10-
Based on the amount in dispute, it cannot be concluded whether representation by a lawyer is necessary or not.
"With its decision of March 24, 2011 - 1 BvR 1737/10, a constitutional complaint against a negative PKH decision of the Berlin Social Court of March 4, 2010 - S 39 AS 21029/09, as well as against the rejection of the appeal decision of the LSG Berlin- Brandenburg from June 10, 2010 – L 5 AS 610/10 B PKH, approved.
As part of an Alg II lawsuit, the social court rejected the requested legal aid and legal representation and essentially stated as justification that a plaintiff who was not in need would not have hired a lawyer for a claim of €42. The State Social Court rejected the complaint against this on the grounds that legal assistance was not necessary. In particular, the social court procedure is free of charge and it is only a minor dispute. There is no appropriate relationship between the amount in dispute (€42) and the cost risk (up to €460).
According to the BVerfG's current decision, the negative decisions were overturned due to a violation of the fundamental right to equal legal protection and the matter was referred back to the SG for a decision. The BVerfG stated, among other things, that the amount in dispute cannot be used to determine whether representation by a lawyer is necessary or not. Rather, this depends on whether there is equality of arms between the parties. It must be taken into account that the person seeking legal action is confronted with representatives of the authorities who are experienced in litigation and have legal knowledge. A sensible legal seeker will therefore regularly hire a lawyer unless, in exceptional cases, he himself has sufficient legal knowledge and skills.”
“(Communicated by Rain Neubacher, Püschel & Colleagues, Mahlow)”
Note: See decision of the BVerfG of March 24, 2011 - 1 BvR 2493/10 -, commented by social law expert RA Ludwig Zimmermann, Nomos The right to secure existence - current information on the development of the right to secure existence
Guiding principle on the BVerfG’s trivial decisions
In social court proceedings, legal aid cannot be rejected simply because of a minor dispute (EUR 7 per month). The appointment of a lawyer through legal aid is necessary in social court proceedings if there is a clear imbalance between the skills and knowledge of the litigants. This is the case with an authority with legally qualified representatives if, in exceptional cases, the party itself does not have sufficient knowledge and skills. BVerfG chamber decision of March 24, 2011 - 1 BvR 2493/10
2. Decisions of the Federal Social Court of April 13, 2011 on basic security for job seekers (SGB II)
2.1 – BSG judgment of April 13, 2011, – B 14 AS 98/10 R –
If Hartz IV recipients are assigned illegal one-euro jobs, they are entitled to additional payment of the standard wage.
Note: There is a contribution from social law expert RA Ludwig Zimmermann in the Nomos specialist forum for securing livelihoods
The BSG decided on April 13, 2011 - B 14 AS 98/10 R that a person entitled to benefits who is not employed in an "additional" 1 EURO job can have a claim for reimbursement under public law against the service provider.
The BVerwG had decided on December 16, 2004 5 C 71.03 that Section 19 Para. 2 BSHG, which was applicable at the time, also worked in favor of the "additional" employee. Whether Section 262 SGB III also applied in favor of the benefit recipient was completely open.
I have the protective effect also with regard to those entitled to benefits has always been assumed to differ from the LSG BW 2.11.2009 L 1 AS 746/09 (The Hartz IV Mandate, Baden-Baden 2010 Chapter § 3 Rn. 174).
The BSG now had to decide on the appeal of another Senate of the LSG BW L 13 AS 419/07 and also accepted the protective effect of Section 262 SGB III. I'm looking forward to hearing the reasons for the verdict.
In a decision of December 16, 2008 B 4 AS 60/07 R, the 4th Senate still doubted whether Section 262 SGB III has a third-party protective character (cf. Rn 28 quote: "Doubt that an examination of this feature can also be carried out by able-bodied people in need of assistance who are defending themselves against the reduction in their entitlement to benefits, is in any case appropriate from the point of view that the aim of the feature of additionality is more likely to be aimed at protecting competitors.")
For me the decision is therefore a small sensation.
2.2 – BSG judgment of April 13, 2011, – B 14 AS 53/10 R-
Hartz IV recipients are only entitled to basic equipment that meets simple needs for initial housing and clothing after release from prison.
The underlying prices for the individual furnishings and items of clothing are clearly stated and the sources of supply are stated; They are also calculated in such a way that, in addition to the – fundamentally reasonable – purchase of used goods, the purchase of new goods is also possible. When it comes to clothing, laundry and seasonal changes were also taken into account.
2.3 – BSG judgment of April 13, 2011, – B 14 AS 85/09 R-
When determining the appropriate KdU, the entire urban area of Berlin is the relevant comparison area.
2.4 – BSG judgment of April 13, 2011, – B 14 AS 32/09 R-
No higher Hartz IV benefits for long-term tenants
Reasons like, the HB has lived in the apartment since 1959; On the other hand, he keeps a comprehensive archive in it, particularly on the topics of sport, the Ministry of State Security and football, in which he is internationally recognized as a scientific expert, does not make it clear why he went beyond the six-month period of Section 22 Paragraph 1 Sentence 3 SGB II should have a higher entitlement to accommodation benefits than are appropriate.
To determine an appropriate price per square meter, the Berlin rent index should be used. With regard to the building age class he used as a basis from 1965 to 1972 with a simple standard of equipment and a living space of 40 sqm to less than 60 sqm, it must be stated that such apartments are statistically comprehensible and are so common across all districts that this building age group alone can be accessed. If it is not possible to fall back on a building age class, it is advisable to create a weighted arithmetic value based on the distribution of the apartments shown in the population in the respective building age classes (see BSG judgment of October 19, 2010 - B 14 AS 50/10 R) .
3. Decision of the Federal Social Court of February 24, 2011 on basic security for job seekers (SGB II)
3.1 – BSG judgment of February 24, 2011, – B 14 AS 45/09 R –
If the applicant has taken over the universal succession after her grandmother as a (co-) heiress, it can be assumed that an amount of money resulting from the inheritance is to be classified as - assets - because the HB has the amount received as an individual donation by way of a legacy and thus obtained as a claim against the estate (1939 BGB, see only Weidlich in Palandt, BGB, 70th edition 2011, § 1939 RdNr 5 mwN).
In the case of universal succession, the inheritance passes directly to the heirs by law, without prejudice to the fact that due to the right of renunciation, an inheritance is only acquired upon acceptance.). As soon as the inheritance occurs, the heir can dispose of his share of the estate (see Section 2033 Paragraph 1 Sentence 1 BGB), without the enforcement of claims against the co-heirs being important (in detail BSG SozR 4-4200 Section 12 No. 12) .
This possibility of disposal already means an inflow in the sense of the case law presented (SGB II itself does not make the distinction between income and assets. As the Senate of the BSG responsible for SGB II has already decided, income within the meaning of Section 11 Paragraph 1 SGB II basically everything that someone receives in terms of value after submitting the application, and assets that they already had before submitting the application (see only 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 actual inflow is to be assumed, unless another inflow is legally determined to be decisive. Not The decisive factor is the fate of the claim).
In the case of universal succession, the decisive factor is that the inheritance with the death of the grandmother occurred before the (first) application was submitted (in this respect already BSG judgment of October 28, 2009 - B 14 AS 62/08 R - juris RdNr 22).The inflow The amount of money in June 2008 from this inheritance is in this case presented as assets that already exist and is therefore still to be qualified as assets (see BSG judgment of September 6, 2007 - B 14/7b AS 66/06 R - BSGE 99 , 77 = SozR 4-4200 § 12 No. 5, each RdNo. 19).
If, on the other hand, the HB has only become the owner of a claim against the estate following the inheritance, allowances are not to be taken into account because in this case it is income within the meaning of Section 11 SGB II at the time the amount of money is received (BSG judgment of October 28th). 2009 – B 14 AS 62/08 R – RdNo 22).
4. Decision of the Federal Social Court of January 18, 2011 on basic security for job seekers (SGB II)
4.1 – BSG judgment of January 18, 2011, – B 4 AS 14/10 R –
No Hartz IV abroad
Anyone who lives outside of Germany cannot receive Hartz IV benefits. This also applies to unemployed people who live in countries close to the border and who have worked as so-called cross-border commuters in the Federal Republic. The law stipulates that Hartz IV recipients must have their habitual residence in Germany. Ultimately, the amount of benefits is calculated for a lifetime in this country
With Section 7 Paragraph 1 Sentence 1 No. 4 SGB II, the legislature has - in accordance with the general principle that, in any case, tax-financed services are linked to residence (Mrozynski, SGB I, General Part, 4th edition 2010, § 30 RdNr 9, 12 ) - expressly refers to the term habitual residence in Section 30 Paragraph 1 SGB I (see BT-Drucks 15/1516 p. 52). According to Section 30 Paragraph 3 Sentence 2 SGB I, someone's habitual residence is where they are under circumstances that indicate that they are not just staying temporarily in this place or area.
A claim to benefits to secure one's livelihood does not arise from a restriction of the principle of territoriality in 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 April 14, 2011 on social assistance (SGB XII)
5.1 – BSG judgment of April 14, 2011, – B 8 SO 18/09 R –
In any case, there is no justification for a normative division (according to headboards) if - as in the present case - there is neither an emergency community nor a needs community between the residents or a household community with other people in need of help.
5.2 – BSG judgment from April 14, 2011,- B 8 SO 12/09 R-
No higher allowance according to Section 82 Paragraph 3 Sentence 3 SGB XII for someone over 70 years old.
Because the unreasonableness of the employment with regard to his age, which the HB asserts as a reason for the application of the regulation, is precisely the rule of the SGB and disabled people. For the special social assistance benefits of Chapters 5 to 9, which are also available to other people in need, the regulations of Sections 85 ff SGB XII apply to the crediting of income.
5.3 – BSG judgment of April 14, 2011, – B 8 SO 19/09 R –
The care allowance is accommodation costs within the meaning of Section 29 SGB
5.4 – BSG judgment of April 14, 2011, – B 8 SO 23/09 R –
The transitional regulation of Section 147 BSHG and Section 115 SGB XII does not only cover reimbursement claims that relate to costs incurred before 1994. Rather, these regulations also apply to costs that only arose after 1993 but can be traced back to ongoing reimbursement cases before 1994. Like Sections 108 BSHG and 108 SGB
6. Decisions of the state social courts on basic security for job seekers (SGB II)
6.1 – State Social Court of Lower Saxony-Bremen decision of April 8, 2011, -L 13 AS 104/11 B ER-
There is no legal basis for higher benefits according to SGB II from January 1st, 20111 (as was already the case by the lower court Social Court Oldenburg decision of February 18th, 2011, - S47 AS 196/11 ER-, published in the case law ticker of Tacheles KW 09/ 2011 ).
Source: Tacheles readers
6.2 - State Social Court of Saxony-Anhalt decision of March 9, 2011, - L 2 AS 87/11 ER (L 2 AS 484/10) -
According to Section 39 No. 1 SGB II, objections and legal challenges to an administrative act that cancels, withdraws, revokes or reduces basic security benefits for job seekers do not have a suspensive effect.
However, the suspensive effect of an action for annulment of a decision that (following the cancellation of the benefit approval) regulates the benefit recipient's obligation to reimburse is not excluded. A corresponding application is also ruled out in view of the clear regulation of Section 39 Paragraph 1 SGB II in the new version (seamlessly) applicable from the beginning of 2009 (see Conradis in LPK-SGB II, 3rd edition, Section 39 paras. 4 and 11) .
Objection to a notice of denial of benefits in accordance with Section 66 SGB I generally has no suspensive effect.
According to Section 39 No. 1 SGB II in the version valid from January 1, 2009, the objection and legal action against an administrative act that cancels, withdraws, revokes or reduces basic security benefits does not have a suspensive effect. The new regulation clarifies the previous version of the law. According to the previous No. 1 of the regulation, the general opinion was that the decisions based on Section 66 SGB I were also immediately enforceable (cf. Conradis in: LPK-SGB II, 3rd edition 2009, Section 39 para. 1; Hengelhaupt in: Hauck/Notfz, SGB II, § 39 para. 76; aA: Coseriu/Holzhey in: Linhart/Adolph, SGB II, § 39 para. 10). It is clear from the will of the legislature that there should be no change in the legal situation with regard to the assessment of refusal notices in accordance with Section 66 SGB I. The legislature simply wanted to make it clear that cancellation and reimbursement notices are not covered by Section 39 No. 1 SGB II. The intention was merely to expand and clarify the standard (cf. BT-Drs. 16/10810, p. 50 to No. 14 (§ 39 SGB II)). Therefore, the previous regulation continues to apply to refusal notices according to Section 66 SGB I (established case law of the Senate, cf. resolution of September 24, 2010, B 5 AS 36/10 B ER; also: LSG Niedersachsen-Bremen, resolution of September 8. March 2010, L 13 AS 34/10 B ER).
The differing opinion, which is based on the wording of the revised Section 39 Para. 1 SGB II (Hessisches LSG, resolution of December 27, 2010, L 9 AS 612/10 B ER; LSG Baden-Württemberg, resolution of April 8, 2010, L 7 AS 304/10 ER-B) does not sufficiently take into account the legislative intention and the history of the norm and led to an objectively unjustified differentiation within Section 66 SGB I. In its application cases, the suspensive effect cannot depend on: whether a benefit approval has already been withdrawn due to a lack of cooperation or whether an applied for benefit is denied from the outset.
6.4 - Hessian State Social Court decision of March 25, 2011, - L 9 AS 108/11 B -
Complaints against the rejection of the approval of legal aid are excluded in social court proceedings if there is no legal remedy in the main case (cf. Senate resolution of July 6, 2009 - L 9 AS 274/08 AS -).
This has been changed by the new regulation of Section 172 Paragraph 3 No. 1 SGG in the version of the Third Law amending the Fourth Book of the Social Code and other laws of August 5, 2010 (BGBl. I 1127), which came into force on August 11th 2010, nothing changed.
The Senate therefore looks like the 7th Senate of Hess. LSG (decision of October 4, 2010 - L 7 AS 436/10 B -) has no reason to deviate from its previous case law, so that in main proceedings the appeal against a decision rejecting legal aid due to a lack of prospect of success according to Sections 73a, 127 Para. 2 Sentence 2 half-sentence 2 ZPO is still excluded if the value of the subject matter of the main matter does not exceed the value limit for the admissibility of the appeal (also LSG Saxony-Anhalt, decision of December 13, 2010 - L 5 AS 426/10 B -; LSG Berlin-Brandenburg, resolutions of September 27, 2010 - L 20 AS 1602/10 B PKH - and of December 22, 2010 - L 34 AS 2182/10 B PKH -; aM LSG Berlin-Brandenburg, resolution of October 29, 2010 – L 25 B 2246/08 AS PKH -; Saxon LSG, 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 appeal by email
SMS, Twitter and e-mail have now largely replaced the classic forms of correspondence. Does this also apply to legal transactions with courts, particularly to lodging appeals?
starting point
A plaintiff had objected to the reclaim of Hartz IV benefits amounting to around EUR 1,300. In vain, the social court dismissed his lawsuit. The plaintiff appealed against this judgment, but not in writing but by email.
The decision
The Bavarian State Social Court has made it clear that emails used to lodge legal remedies do not meet the legal formal requirements of procedural law.
Effects of the decision
Electronic legal transactions will also replace paper forms in the courts – in the future. However, for reasons of legal certainty, there will then also be certain formal requirements for access to the courts. Emails without signatures will certainly not be sufficient for legal action in the future, not least because of their redundant arbitrariness.
Note: See Bavarian State Social Court decision of March 9, 2011, - L 7 AS 151/11 B ER -, published in the case law ticker of Tacheles KW 15/2011 .
Complaints by email are ineffective for another reason. According to Section 65a Paragraph 1 Sentence 3 and 4 SGG, an email that is to be equivalent to a signed document must have a qualified electronic signature or have been transmitted using another approved secure procedure. A complaint must be submitted in writing in accordance with Section 173 Sentence 1 SGG. This means that a personally signed written document must be submitted (see Section 126 Paragraph 1 BGB and Meyer-Ladewig, Social Court Act, 9th edition 2008, Section 173 Rn. 3). There is no provision in the complaint that relativizes the signature requirement (see Section 92 Paragraph 1 Sentence 3 SGG in the lawsuit: "The lawsuit should... be signed). However, the email from February 17, 2011 did not have a qualified one Signature.
6.6 – Berlin-Brandenburg State Social Court Decision of February 28, 2011, – L 14 AS 205/11 B ER –
As long as the person in need of assistance is receiving benefits, they will usually have to rely on the basic social security provider to cover the 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 have the benefits to which they are entitled by law provided to them in a timely manner so that they are able to fulfill their contractual obligations to the landlord of the living space in a timely manner. As a rule, the risk of a termination of living space or a lawsuit due to late payment of the rent (with the associated costs) or even a lawsuit for eviction cannot be expected (most recently resolution of the Senate of August 31, 2010 - L 14 AS 1263/ 10 B ER –).
Accordingly, if the claim for an order is credibly made, a reason for an order can only be denied if the employable person in need of assistance can, at least temporarily, incur the actual expenses from income (“exemptions”) or assets (“protected assets”) that are not to be taken into account.
7. Decisions of the social courts on basic security for job seekers (SGB II)
7.1 – Darmstadt Social Court judgment of March 14, 2011, – S 22 AS 395/10 –
The job center does not have to cover the unreasonable accommodation costs because the apartment offers ideal conditions for the intended self-employment.
1. The determination of the abstract appropriateness limits for the costs of accommodation in accordance with Section 22 Paragraph 1 SGB II is carried out in the Bergstrasse district according to a coherent concept.
2. The comparison area must be large enough, regardless of local political boundaries, to reflect a statistically valid, tangible housing market.
3. If the SGB II service 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 work when renovating and converting the rental property, even if they were particularly high, do not mean that the move is unreasonable.
7.2 - Aachen Social Court judgment of April 6, 2011, - S 5 AS 462/10 -, appeal permitted
The question of how future unclear income is to be taken into account in the provisional approval of 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 Non-Consideration of Income and Assets in Unemployment Benefit II/Social Benefit (ALG II-V) in the version dated December 17, 2007 (BGBl. I 2007, 2942), amended on July 23, 2009 (BGBl. I 2009, 2340), a monthly average income can be used as the basis if current income is expected to flow in at different amounts during the approval period. The monthly average income to be taken into account for each month in the approval period is the part of the income that results from dividing the total income in the approval period by the number of months in the approval period (see sentence 2 of Section 2 Paragraph 3 ALG II-V).
The average monthly income of the previous approval period should be chosen as a reference value (also the implementation instructions from the Federal Employment Agency for the application of the Social Security Code II [DH-BA SGB II], No. 11.8). Section 2 Paragraph 3 Sentence 2 ALG II-V expressly only regulates a known total income, in that the provision stipulates that the total income of the approval period (i.e. the future period) is divided by the number of months of the (future) period is to be shared. However, if the total income for the (future) period - as in this case the income for each individual month of this period - has not yet been determined and no change compared to the previous period is to be expected, the defendant is entitled to use the total income of the previous approval period and that The average monthly income for this approval period must be used as the basis for calculating benefits.
7.3 – Bremen Social Court decision of April 5, 2011, – S 23 AS 497/11 ER –
Even according to the new legal situation (§ 22 Para. 8 SGB II nF), the interruption of the power supply represents an emergency that comes close to homelessness (see decision of the 21st Chamber of the Social Court of February 10, 2009 - S 21 AS 6/09 ER).
It follows that the service provider usually has to assume the corresponding electricity debts and can only deviate from this in atypical cases.
Section 22, Paragraph 8, Sentence 1, SGB II, new version, basically places the decision on taking on debts to secure accommodation at the discretion of the service provider (“can”). When making a discretionary decision about the assumption of arrears in energy costs, the latter must then take into account all the circumstances of the individual case as part of a comprehensive overall view, such as the amount of the arrears, the causes that led to the arrears in energy costs, and the composition of the group of people threatened by a possible energy cut-off ( in particular if small children are affected), the possibilities and reasonableness of alternative energy supplies, the behavior shown in the past, for example whether it is a first-time or a repeated deficit, efforts to adjust consumption behavior and a recognizable desire to help oneself (see Section 22 Para. 5 old version). : Berlit, in: LPK-SGB II, 2nd edition, 2007, § 22 para. 118 with further references).
7.4 - Kassel Social Court judgment of March 1, 2011, - S 6 AS 175/09 -, appeal permitted
In the case of definitive preliminary sanctions, the legality of the preliminary sanctions must be examined by the court, because particularly in cases in which it is readily apparent to the court that the previous sanction decision is unlawful, the courts would be failing in their duty to protect and promote the fundamental rights of the individual (BVerfG, decision of May 12, 2005, 1 BvR 569/05, Rn. 26), would not be fair if they were to leave the illegality of the previous sanction decision unchallenged.
This does not mean that the previous sanction decision itself becomes the subject of dispute. However, the courts must, of their own motion, incidentally review the legality of the previous sanction on which the sanction for repeated breach of duty is based (Berlit in: Münder (ed.), SGB II, 3rd A. 2009, § 31 Rn. 86 ). If there is no lawful prior sanction, the sanction decision for repeated breach of duty is unlawful and must be repealed.
In the case of reductions in SGB II benefits due to repeated breaches of duty, it is necessary that corresponding prior sanction notices exist that establish the existence of a prior sanction event and a corresponding sanction at the lower sanction level (BSG judgment of November 9, 2010, - B 4 AS 27/10 R, paragraph 20).
The crucial question for the present legal dispute has not yet been sufficiently clarified within the higher court jurisprudence as to whether, in the case of a sanction decision due to a repeated breach of duty, it is sufficient that a corresponding final sanction decision is available at the first sanction level.
According to the Bavarian State Social Court (LSG), in the event of repeated breaches of duty, the final sanction notices should have the effect of the offense (Bayerisches LSG, decision of April 26, 2010, L 7 AS 212/10 B ER, Rn. 18), so that the SGB II service provider is not required to check the previous sanction decision.
The LSG Berlin-Brandenburg (decision of October 12, 2007, L 14 AS 1550/07 ER, Rn. 3) and the LSG Niedersachsen-Bremen (decision of June 22, 2009, L 7 AS 266/09 B ER, Rn. 11 with reference to BSG, SozR 3-4100 § 119 No. 23) rightly demand this in accordance with parts of the scientific literature (cf. Valgolio in: Hauck & Noftz (ed.), SGB II, 13th Lfg. VII/07 , § 31 Rn. 105; Berlit in: Münder (ed.), SGB II, 3rd A. 2009, § 31 Rn. 86), that in the case of sanctions for repeated breaches of duty, there are lawful preliminary sanctions at the respective lower levels.
7.5 – Gelsenkirchen Social Court Decision of March 30, 2011, – S 27 AS 667/11 ER –
No exclusion from SGB II benefits for Greek citizens
The applicant is not excluded from benefits under SGB II according to Section 7 Paragraph 1 Sentence 2 SGB II. According to this, foreigners who are neither employed or self-employed in the Federal Republic of Germany nor entitled to freedom of movement on the basis of Section 2 Paragraph 3 FreizügG/EU and their family members are entitled to the right of residence for the first three months (Section 7 Paragraph 1 Sentence 2 No. 1 SGB II) and foreigners whose right of residence arises solely for the purpose of looking for work, and their family members (Section 7 Paragraph 1 Sentence 2 No. 2 SGB II), are excluded from benefits under SGB II.
The applicant entered the Federal Republic solely for the purpose of looking for work and established his habitual residence here only for this purpose, so that according to the wording, the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 SGB II would apply. However, the exclusion of benefits is not applicable to the applicant because, as a Greek citizen, the applicant can rely on the equal treatment requirement of Art. 1 EFA, which, in addition to the Federal Republic of Germany, Greece has also signed (see in detail BSG, judgment of October 19, 2010 – B 14 AS 23/10 R).
7.6 – Berlin Social Court Decision of February 17, 2011, – S 149 AS 414/11 ER –
1. There are doubts as to whether the unlimited exclusion of benefits in accordance with Section 7 Paragraph 1 Sentence 2 No. 2 SGB 2, without differentiation according to whether the search for work was already the purpose of entry or later became the sole purpose of residence, is compatible with the European enabling norm of Article 24 Paragraph 2 of Directive 2004/38/EC (Union Citizens' Directive) in conjunction with Article 14 Paragraph 4 Letter b of the Union Citizens' Directive is compatible.
2. The compliance with European law of the exclusion of benefits is not important if another right of residence exists. This can arise not only from the freedom of movement for workers and the right of settlement, but under certain circumstances also from parental custody of a minor child who is entitled to freedom of movement.
3. If it cannot be sufficiently clarified within the framework of an interim legal protection procedure whether another right of residence exists, the consequences must be weighed up in view of the fact that benefits according to SGB 2 continually guarantee a humane subsistence minimum based on Article 1 Paragraph 1 of the Basic Law in conjunction with the welfare state principle Article 20 Paragraph 1 of the Basic Law regularly works in favor of the applicants.
7.7 – Berlin Social Court judgment of January 18, 2011, – S 157 AS 26445/08 –
Because it remains unclear whether the payment of money from relatives to support a Hartz IV recipient should be a gift or just a loan, this is at the expense of the Hartz IV recipient. The payment is to be credited as income reducing benefits towards the Hartz IV entitlement.
In order to counteract the risk of misuse of tax resources, a clear distinction must be made between a disguised gift, maintenance payment or loan when money flows between relatives. It is important to check whether a loan agreement has actually been concluded and is meant seriously. The minimum requirement for a loan is that a specific agreement on the repayment obligation has been made by the time the money flows at the latest. There must be clarity at least about the amount owed or the question of 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 nature of the provisional nature of the interim legal protection means that the further grounds for admissibility for an appeal within the meaning of Section 144 Paragraph 2 SGG do not need to be examined within the framework of Section 172 Paragraph 3 No. 1 SGG (cf. e.g. LSG Berlin- Brandenburg, resolution of September 30, 2010 - L 20 AS 1702/10 B - ; Senate resolution 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 March 2, 2011, – S 49 SO 109/11 ER –
According to Section 2 Paragraph 1 SGB 12, there is no entitlement to social assistance if the necessary help is already being provided by others, in particular by providers of other social benefits. This also applies to help with appropriate schooling, since the educational support of school-age children is primarily the responsibility of the school and not of the social welfare provider (cf. LSG Baden-Württemberg, judgment of November 18, 2010 -L 7 SO 6090/08- ).
https://socialcourtsability.de
10. Kiel Regional Court recognition judgment of December 8th, 2010, – 17 0 160/10-
Jobcenter is obliged to pay compensation for late payment of ALG II if the benefit recipient has submitted the application for continued payment in a timely manner.
Those entitled to ALG II benefits are entitled to compensation for the financial loss (bank chargeback costs - here 29.65 euros) that they incur as a result of late payment.
There was an official liability claim according to Article 34 of the Basic Law in conjunction with Section 839 of the German Civil Code (BGB), which had to be asserted before the LG Kiel and was directed at the damage that an official employee had caused to another through intentional or negligent breach of duty.
According to the local social justice system, there is no so-called social law claim to production that could be asserted before the SG.
Source: Attorney Helge Hildebrandt, article in the Hempels-Straßenmagazin (poverty newspaper) No. 180, April 2011, p. 26.
11. Social Law Current Issue 2/2011, an article by Dr. Björn Harich, judge at the SG Bremen and currently a research assistant at the BSG.
Legal aid and subsistence level
www.socialright-aktuell.nomos.de (pdf)
12. Slides on SGB II, prepared by Harald Thome, as of April 12, 2011
13th New Justice issue 04/2011, an essay by social law expert RA Ludwig Zimmermann
Beneficiaries according to SGB II
13. Technical information on SGB II / New instructions:
FH on § 11, 11a, 11b SGB II / Status: April 11th, 2011
FH on § 20 SGB II / Status: 11.04.2011
FH on § 23 SGB II / Status: April 11th, 2011
FH on § 24 SGB II / Status: 11.04 .2011
FH on § 27 SGB II / Status: April 11th, 2011
FH on § 44a SGB II / Status: April 11th, 2011
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
