7.3 – Current case law of the Stuttgart Social Court regarding employment promotion under Book III of the German Social Code (SGB III) and social assistance under Book XII of the German Social Code (SGB XII).
1. Stuttgart Social Court judgment of July 12, 2011, file number: S 16 AL 8129/09.
Proof of incapacity for work is not contingent upon the submission of a certificate of incapacity for work. Proof can also be provided in other forms to avoid a waiting period.
2. SG Stuttgart Judgment of 28.06.2011, Case No.: S 3 AL 7354/09
Business start-up coaching is not to be funded by the Federal Employment Agency after the expiry of the one-year period stipulated in the funding regulations, even if the failure to comply with the deadline may be due to a breach of duty by the Federal Employment Agency.
3. SG Stuttgart Judgment of 18.10.2010, File No.: S 19 AL 7177/09
The entitlement to unemployment benefit ceases upon commencement of an unauthorized stay abroad.
4. SG Stuttgart Judgment of 26.07.2011, Case No.: S 15 AL 4170/10
No continued payment of unemployment benefits in case of incapacity for work if the incapacity for work occurs during the suspension of the entitlement to unemployment benefits due to holiday pay and continues beyond this period.
5. SG Stuttgart Judgment of 28.07.2011, Case No.: S 23 AL 5491/10
An unemployed person who resides in a location that does not allow him to comply with the employment agency's proposals for professional integration in a timely and local manner loses his entitlement to unemployment benefits even if he commissions a third party to forward letters from the employment agency to him.
6. SG Stuttgart Judgment of 27.01.2011, Case No.: S 5 AL 3455/10
The registration as unemployed and the availability of the unemployed person for placement measures of the employment agency cannot be subsequently fictitiously established to justify an entitlement to unemployment benefits.
7. Stuttgart Social Court, Judgment of May 25, 2011, Case No.: S 2 AL 2100/1:
If a business start-up depends entirely on financing from a bank and the business start-up is not intended without this financing, self-employment can only be considered to have commenced when this financing has actually been secured or is at least seriously imminent. If, however, the business founder cannot find a bank for the necessary financing, self-employment cannot yet be considered to have commenced, and therefore there is no entitlement to a start-up grant.
8. Stuttgart Social Court, Judgment of January 31, 2011, Case No.: S 2 AL 3055/10:
If the granting of a benefit is contingent upon compliance with a deadline, the applicant must provide proof that the application was submitted on time. To this end, the applicant must prove that the application was received (on time) by the benefit provider. The fact that the application was mailed on time is generally insufficient.
9. SG Stuttgart decision of 15.08.2011, file no.: S 12 SO 3964/11 ER
No entitlement to reimbursement of rental costs for an apartment during the period of incarceration.
10. SG Stuttgart Judgment of 18.07.2011, Case No.: S 12 SO 7445/10
No entitlement to a new washing machine, even in the case of (alleged) risk of explosion.
11. SG Stuttgart Judgment of 20.06.2011, Case No.: S 7 SO 3292/09
A recipient of basic income support in old age, who is severely visually impaired and therefore has a limited ability to orient herself, cannot reasonably be expected to move to another apartment if her monthly rent exceeds the permissible rent limit by approximately EUR 60.00.
7.4 – Social Court Lüneburg Judgment of 28.04.2011, – S 36 AS 1428/09 –
The training allowance pursuant to Sections 97, 104 Paragraph 1 No. 2, 107 SGB III of a workshop for disabled persons is not income within the meaning of SGB II.
The training allowance pursuant to Sections 97, 104 Paragraph 1 No. 2, 107 of the German Social Code, Book III (SGB III), which the applicant receives for participation in the vocational training section of the workshop for disabled persons, is not a designated income, because no designation of purpose can be derived from the regulations (but see: judgment of the Higher Social Court (LSG) of Lower Saxony-Bremen of February 26, 2009 – L 8/13 SO 7/07 – and judgment of the Higher Social Court (LSG) of Berlin-Brandenburg of February 21, 2008 – L 23 SO 269/06 -).
However, according to the ruling of the Federal Social Court (BSG) of March 23, 2010 – B 8 SO 17/09 R – the income remains exempt from being taken into account in order to avoid unequal treatment with employees in the workshop's work area.
This ruling by the Federal Social Court (BSG) concerning the German Social Code, Book XII (SGB XII), should be followed, as the legal situation is transferable and there is no reason to handle income crediting differently under the German Social Code, Book II (SGB II).
Because the preferential treatment of social assistance recipients with the allowances granted by Section 82 Paragraph 3 of the German Social Code, Book XII (SGB XII) would also apply to the plaintiff in the present case and, in the opinion of the Federal Social Court (BSG), is not justified.
Section 82 paragraph 3 sentence 3 of the German Social Code, Book XII (SGB XII) applies to the receipt of training allowance because this is similar to the remuneration from employment.
Note: See also the decision of the Hamburg State Social Court of 06.07.201, – L 5 AS 191/11 B ER –, published in the Tacheles case law ticker, week 30/2011.
Training as an office communication clerk, funded by the Federal Employment Agency as a means of participation in working life, does not preclude entitlement to SGB II benefits.
Measures aimed at promoting the participation of disabled people in working life are not considered funding under vocational training assistance or the Federal Training Assistance Act (BAföG).
While training as an office clerk is generally eligible for funding under Section 60 Paragraph 1 of the German Social Code, Book III (SGB III), if – as in this case – the applicant is a disabled person and the requirements for receiving benefits for participation in working life, and in particular for the approval of special benefits under Sections 102 et seq. of the SGB III, are met, these more specific regulations supersede the general ones.
The training allowance is distinct from vocational training assistance; despite the normative connection via Section 104 Paragraph 2 of the German Social Code, Book III (SGB III), they are different categories of support. Had the legislator intended to create an exclusion criterion in this respect as well, they could and should have referenced the relevant provisions. The regulation in Section 27 Paragraph 3 of the German Social Code, Book II (SGB II) (or Section 22 Paragraph 7 of the former version of SGB II), which provides for a housing cost subsidy even for recipients of training allowance and is thus clearly based on the concept of an exclusion of benefits according to Section 7 Paragraph 5 of SGB II, does not lead to a different assessment.
This is likely due to the legislative error that Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) also applies to recipients of training allowance (see BT-Drs. 16/1410 p. 24); However, this was not the case at the time this regulation was created in Section 22 Paragraph 7 of the German Social Code, Book II (SGB II, old version) (as here: Higher Social Court Berlin-Brandenburg, Decision of 11 February 2008 – L 5 B 10/08 AS ER; Social Court Berlin, Judgment of 5 December 2008 – S 37 AS 23403/08; Higher Social Court Saxony, Decision of 6 September 2010 – L 7 B 633/08 AS ER; also Brühl/Schoch, in: LPK-SGB II, 3rd edition 2009, Section 7, marginal note 114; contra Spellbrink, in: Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 7, marginal note 104).
With the amendment of the German Social Code, Book II (SGB II) by the law of March 24, 2011 (Federal Law Gazette I, p. 453 et seq.) and the transfer of the subsidy provision from Section 22 Paragraph 7 of the former version of SGB II to the newly worded Section 27 Paragraph 3 of SGB II, the legislator has not changed anything in this respect and has also not addressed the scope of the exclusion provision in Section 7 Paragraph 5 of SGB II (Bundestag Printed Matter 17/3403, p. 169 et seq.).
7.5 – Social Court Neuruppin Decision of 18.08.2011, – S 17 AS 1574/11 ER –
Section 7 paragraph 1 sentence 2 no. 2 of the German Social Code, Book II (SGB II) is not to be interpreted as an exception in a way that would mean that the exclusion from benefits already applies if one of several grounds for residence is that of Section 2 paragraph 2 no. 1 of the Freedom of Movement Act/EU.
Section 7 paragraph 1 sentence 2 no. 2 of the German Social Code, Book II (SGB II) is not to be interpreted as an exception in a way that would mean that the exclusion from benefits already applies if one of several grounds for residence is that of Section 2 paragraph 2 no. 1 of the Freedom of Movement Act/EU (cf. Lower Saxony-Bremen State Social Court, decision of March 11, 2011 – L 13 AS 52/11 B ER -).
Moreover, such an interpretation would raise considerable concerns with regard to Article 3 Paragraph 1 of the Basic Law (GG) and Article 6 Paragraph 1 of the Basic Law.
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Exclusion of benefits for foreigners residing for the purpose of seeking employment and the European Social Security Convention
(social law expert.blogspot.com)
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
