1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Lower Saxony-Bremen State Social Court, decision of 08.03.2012, – L 13 AS 22/12 B ER –
Regarding the question of who is responsible for the costs of clearing out, deep cleaning and renovating the apartment of a "hoarder"
1. The needs of a person seeking assistance that arise from misuse of the apartment (hoarding) are not part of the needs for accommodation and heating within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
2. Likewise, a necessary basic cleaning and renovation of a hoarder's apartment is unlikely to be regulated on the basis of Sections 24 Paragraph 1 Sentence 1, 21 Paragraph 6 Sentence 1 SGB II.
3. The legal basis for the entitlement to the cleaning of a hoarder's apartment is Section 67 of the German Social Code, Book XII (SGB XII) in conjunction with Section 4 of the Ordinance on Section 69 of the German Social Code, Book XII (SGB XII), whereby the decision on the type and extent of assistance is at the discretion of the benefit provider.
www.rechtsprechung.niedersachsen.de
Note by Willi 2: SG Aurich, Judgment of 08.03.2012, – S 35 AS 201/11 R –
Costs for bulky waste disposal are considered part of housing costs if they are reasonable and must be covered by the job center.
sozialrechtsexperte.blogspot.de
1.2 – Lower Saxony-Bremen State Social Court, Judgment of 28 February 2012, – L 7 AS 783/11 – Appeal allowed
The exclusion of benefits for students according to § 7 para. 5 SGB II ends with the date of the last examination part (§ 15b para. 3 sentence 2 BAföG), even if the educational assistance is paid for the entire (last) month of training according to internal instructions.
www.rechtsprechung.niedersachsen.de
1.3 – Lower Saxony-Bremen State Social Court, Judgment of 08.07.2011, – L 9 AS 524/07 –
Despite his share of co-ownership of a house and land, a co-heir may be in need of assistance within the meaning of Sections 7 Paragraph 1 Sentence 1 No. 3, 9 and 12 Paragraph 3 No. 4 of the German Social Code, Book II (SGB II).
Although, according to § 2033 para. 1 of the German Civil Code (BGB), each co-heir can dispose of their share of the estate; however, this does not apply to individual estate assets and also not to their share of individual estate assets, § 2033 para. 2 of the German Civil Code (BGB).
A partial settlement against the will of the co-heir cannot be enforced, § 2040 para. 1 BGB.
The size of the property is not to be taken into account when considering whether the house property is protected assets within the meaning of Section 12 Paragraph 3 No. 4 of the German Social Code, Book II (SGB II); rather, the size of the property gives cause to examine whether a separate sale of the portion of the property exceeding the reasonable size as an independent property is possible.
www.rechtsprechung.niedersachsen.de
Note by Willi 2: Bavarian State Social Court judgment of February 2, 2012 – L 11 AS 675/10 –
Basic income support under the German Social Code, Book II (SGB II) – Neediness despite real estate assets
sozialrechtsexperte.blogspot.de
1.4 – North Rhine-Westphalia State Social Court, decision of 15 March 2012, – L 7 AS 2289/11 B ER –
If, within the framework of a balancing of interests, the granting of benefits was justifiable, the dispute as to whether the regulation in Section 59 SGB II in conjunction with Section 309 Paragraph 1 SGB III allows recourse to Sections 62, 66 SGB I as a special provision is not relevant to the decision.
However, the Senate points out that, assuming the applicant is in need of assistance, it tends to regard the provisions of Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 Paragraph 1 of the German Social Code, Book III (SGB III) as a special provision that supersedes the provision of Section 66 of the German Social Code, Book I (SGB I) (see Eicher/Spellbrink, Commentary on the German Social Code, Book II (SGB II), 2nd edition 2008, Section 59, marginal note 25 with further references).
Note by Willi 2: Hessian State Social Court, decision of 22.06.2011, – L 7 AS 700/10 B ER –
If a recipient of benefits under the German Social Code, Book II (SGB II) refuses to undergo a medical or psychological examination, a sanction may be imposed in accordance with Section 31 Paragraph 2 of the SGB II.
The legislator has enacted a specific regulation in Section 59 of the German Social Code, Book II (SGB II), in conjunction with Section 309 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), which excludes the application of the German Social Code, Book I (SGB I).
sozialrechtsexperte.blogspot.de
1.5 - North Rhine-Westphalia State Social Court, Judgment of 26 January 2012, – L 7 AS 1071/11 –
The legislator did not inadvertently omit an "extension" until the start of the old-age pension.
The existing regulation is unambiguous according to its wording (see also LSG NRW, decision of 21.06.2010 – L 6 AS 645/10 B Rn. 8 juris).
This also follows indirectly from Section 7a SGB II nF, according to which an entitlement to basic income support until the end of the month in which the 65th year of age is completed can only be derived from April 2011 onwards.
The legislator did not order retroactive application for "old cases" – even though the "gap" between the two benefit systems was known.
Furthermore, Section 7a of the German Social Code, Book II (SGB II) does not guarantee seamless transition, meaning the payment of basic income support until the first pension payment is credited to the recipient's account, as mandated by law. This is because the first old-age pension payment is made at the end of the following month (Section 118, Paragraph 1, Sentence 1 of the German Social Code, Book VI (SGB VI)), meaning that either the protected assets must be used beforehand or a loan from the social welfare agency is granted upon application (Bundestag Printed Matter 17/3404 on Section 7a as amended; Wolff-Dellen in Löns, Commentary on the German Social Code, Book II (SGB II), 3rd edition 2011, Section 7a, marginal note 3).
A different assessment does not result even when taking into account Section 7 Paragraph 4 of the German Social Code, Book II (SGB II).
According to this provision, anyone receiving an old-age pension is excluded from receiving benefits under this book. This regulation must be applied in the context of and in accordance with Section 7 Paragraph 1 and Section 7a of the German Social Code, Book II (SGB II). Reaching the age limit according to Section 7 Paragraph 1 Sentence 1 Number 1 of the SGB II results in exclusion from the group of employable benefit recipients, regardless of whether an entitlement to a pension exists. Conversely, the actual receipt of an old-age pension leads to the exclusion of benefits under the SGB II for both employable and non-employable benefit recipients.
Section 7 paragraph 4 sentence 1 of the German Social Code, Book II (SGB II) therefore covers those who are entitled to benefits as members of a household receiving benefits if they receive an old-age pension instead of a pension due to reduced earning capacity (Thie/Schoch LPK-SGB II, 4th edition 2011, § 7 marginal note 100)
1.6 – North Rhine-Westphalia State Social Court, judgment of 12 January 2012, – L 19 AS 383/11 –, appeal pending before the Federal Social Court under file number: – B 4 AS 37/12 R –
No exclusion of benefits for foreigners who join a German citizen as a family member or as an employee, a self-employed person or a person entitled to freedom of movement under Section 2 Paragraph 3 of the Freedom of Movement Act/EU (FreizügG/EU).
According to Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) as amended on August 28, 2007 (Article 6 Paragraph 9 No. 2 of the Law on the Implementation of Directives of the European Union on Residence and Asylum Law of August 19, 2007, Federal Law Gazette I, 1970), foreigners who are neither employed, self-employed or 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 are excluded from benefits for the first three months of their stay.
This exclusion from benefits does not apply to foreigners who join a German national, an employee, a self-employed person or a person entitled to freedom of movement under Section 2 Paragraph 3 of the Freedom of Movement Act/EU (FreizügG/EU), in the Federal Republic of Germany.
The Senate concurs with the convincing arguments of the Social Court that the provision of Section 7 Paragraph 1 Sentence 2 No. 1 SGB II, according to its wording, its context, its purpose, as well as the legislative materials and the legislative history, does not cover the reunification of a foreign spouse with his German spouse.
The provision of Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) already distinguishes, according to its wording, between foreigners who have an independent right of residence in the Federal Republic of Germany and foreigners who have a right of residence in Germany solely on the basis of their family status, i.e., derive their right of residence from another person (cf. Thie/Schoch in LPK-SGB II, Section 7 4th edition, marginal note 25; similarly, in effect, Social Court Berlin, judgment of April 18, 2011 – S 201 AS 45186/09). The opposing view, that Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) generally excludes all foreigners – with the exception of the persons covered by Section 7 Paragraph 1 Sentence 3 of the SGB II as well as employees, self-employed persons, and persons entitled to freedom of movement under Section 2 Paragraph 3 of the Freedom of Movement Act/EU – from receiving benefits during the first three months after their entry, regardless of the basis of their right of residence (as apparently held by the Higher Social Court of Baden-Württemberg, decision of April 27, 2011 – L 3 AS 1411/11 ER-B – and the Social Court of Stuttgart, decision of March 24, 2011 – S 24 As 1359/11 ER – without further explanation), does not arise from the wording of the provision. If the legislator had intended a general exclusion of foreigners during the first three months after their entry, a differentiation between foreigners and their family members would not have been necessary (see also BT-Drs. 16/688 p. 13).
Furthermore, considering the simultaneous reform of the law on family reunification for foreign family members joining their German family members under immigration law (§ 28 of the Residence Act) – whereby the entitlement to family reunification generally does not depend on sufficient living space and financial security (cf. Dienelt in Renner, Ausländerrecht [Immigration Law], 9th ed., § 28 para. 6) – both systematic and teleological reasons argue against excluding a foreign spouse from the social security system under Book II of the German Social Code (SGB II) during the first three months after their entry to join a German spouse. As the Social Court correctly stated, such an exclusion would jeopardize the economic livelihood of the German spouse, who would have to support their spouse during the first three months after their entry despite lacking the means to do so. In this context, the fundamental value judgment of the Basic Law in Article 6 Paragraph 1 must be taken into account, according to which, in principle, only spouses have the right to determine the spatial and social center of their shared life independently and free from state interference. The free decision of both spouses to live together in the Federal Republic of Germany therefore deserves special state protection if one of the spouses has German citizenship (Federal Constitutional Court decision of 18 July 1979 – 1 BvR 650/77 – = juris Rn 33).
This special state protection not only justifies not making the permissibility of a foreign family member joining a German family member dependent under immigration law, as a rule, on proof of financial security within the meaning of Section 5 Paragraph 1 Number 1 of the Residence Act, but also the inclusion of foreign family members of a German citizen in the social security system under Book II of the German Social Code (SGB II) immediately upon their entry. The explanatory memorandum to the law, according to which EU citizens entering the Federal Republic as family members of a German citizen are not covered by the provision of Section 7 Paragraph 1 Sentence 2 Number 1 of Book II of the German Social Code (Bundestag Printed Matter 16/688, p. 13), indicates that the legislator apparently assumed that the case of a foreign spouse joining their German spouse in the Federal Republic would not be covered by the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 Number 1 of Book II of the German Social Code.
This is because the law makes no distinction between foreign spouses who are Union citizens and those who are third-country nationals, particularly not in the wording of Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II).
1.7 – North Rhine-Westphalia State Social Court, decision of 07.03.2012, – L 12 AS 104/12 B ER –
The question of whether the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (exclusion from benefits if the right of residence arises solely from the purpose of job seeking) applies to the detriment of the Lithuanian applicant cannot be conclusively clarified in the preliminary legal protection proceedings.
There are considerable doubts as to whether the exclusion of benefits in this provision is compatible with the Community law of the European Union (see in detail LSG NRW, decision of 17.05.2011 – L 6 AS 356/11 B ER with further references).
The balancing of interests, which is the sole decisive factor for the requested preliminary injunction (see Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05), weighs in favor of the applicant. Without the requested benefits, she faces existential disadvantages that she cannot avert on her own. In contrast, the respondent only has to expect financial disadvantages if the applicant should not prevail with her claim in the main proceedings.
Willi 2's comment: Hartz IV for immigrants from the EU – equal treatment is mandatory
Germany wants to circumvent an EU regulation and refuse to pay Hartz IV benefits to EU citizens who have immigrated. This is clearly illegal, says social law expert Dorothee Frings.
sozialrechtsexperte.blogspot.de
1.8 – Saxon State Social Court, decision of 01.11.2011, – L 3 AS 371/10 B PKH –
Neither the wording of the law nor the legislative materials indicate that the competent authority should be authorized to prescribe to an applicant which specific expert body he must submit a statement from for the approval of start-up funding.
The applicant is responsible for selecting the expert body whose services are to be used.
According to Section 16b Paragraph 1 Sentence 1 of the German Social Code, Book Two – Basic Income Support for Jobseekers – (SGB II), employable benefit recipients who are unemployed may receive an entry grant to overcome their need for assistance by taking up employment subject to social security contributions or self-employment, provided this is necessary for their integration into the general labor market. According to Section 16c Paragraph 1 Sentence 1 SGB II, integration assistance for employable benefit recipients who take up or pursue self-employment as their primary occupation may only be granted if it is expected that the self-employment will be economically viable and that the need for assistance will be permanently overcome or reduced by the self-employment within a reasonable period. An expert opinion should be required to assess the viability of the self-employment (see Section 16c Paragraph 1 Sentence 2 SGB II).
The bodies considered competent to assess the viability of self-employment are listed by the legislator in Section 57 Paragraph 2 Sentence 2 Clause 2 of the German Social Code, Book Three – Employment Promotion – (SGB III), with the start-up grant as examples. These include, in particular, chambers of industry and commerce, chambers of skilled crafts, professional associations, trade associations, and credit institutions. This list can also be referred to in connection with Section 16c Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) (see Saxon State Social Court, decision of October 13, 2009 – L 3 AS 318/09 B ER – JURIS document, marginal note 28, with further references; regarding the requirements for other potentially suitable institutions: Sauer, in: Sauer [ed.], SGB II [2011], Section 16c, marginal note 16; Breitkreuz, in: Löns/Herold-Tews, SGB II [3rd ed., 2011], Section 16c, marginal note 5).
According to the legislator's intent, the provision in Section 16c Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is meant to support the discretionary decision of the SGB II benefit provider. The word "meant" indicates that the statement can be waived if the authority responsible for deciding on the start-up grant has its own expertise in evaluating companies (see Bundestag Printed Matter 16/10810, p. 47). However, neither the wording of the law nor the legislative materials suggest that the responsible authority is authorized to prescribe to an applicant which specific expert body they must obtain a statement from. Rather, the selection of the expert body whose services are to be used is the responsibility of the applicant.
However, there may be cases in which the responsible authority has doubts about the content of the statement. It also seems conceivable that, exceptionally, due to the specific circumstances of the individual case, only a limited number of expert bodies are capable of providing a qualified statement. But even in any of these situations, there is no legal basis that would allow the SGB II authority to exclude the applicant's discretion in choosing an expert body and to prescribe a specific expert body as binding (as Breitkreuz seems to suggest, op. cit.). It can only offer the applicant a selection of several potentially suitable expert bodies.
In the present case, the statement by ARGE Dresden that the application for a start-up grant requires particularly careful examination due to the ongoing insolvency proceedings does not justify the restriction to the Chamber of Industry and Commerce.
2. Decisions of the State Social Courts on Social Assistance (SGB XII)
2.1 – Bavarian State Social Court, decision of 24 February 2012, – L 8 SO 9/12 B ER –
No appeals via email or PDF
Email, SMS, mobile messengers, and Facebook are increasingly replacing traditional mail. Modern access to the courts, and thus constitutionally guaranteed legal protection, is a requirement for a modern justice system. At the same time, the courts must ensure legal certainty while preventing information from legal disputes from falling into the wrong hands. So, what is the current outcome of the balancing act between data protection and legal certainty on the one hand, and email communication on the other?
The Bavarian State Social Court has clarified this matter with a recent ruling.
Starting point
The social court had rejected an application for preliminary legal protection submitted by email as formally invalid. The applicant appealed this decision – again by email. As an attachment to the email, the applicant included the signed appeal as a PDF file.
The
Bavarian State Social Court dismissed the appeal as formally invalid. The email did not meet the legal requirement of written form. The same applied to the PDF file – printed out by the court and thus submitted in written form. The court reasoned that the printing depended on an action by the recipient, and compliance with formal requirements should not depend on such action. Finally, because of the specific email address used by the applicant, it was not certain that the appeal actually originated from her.
Impact of the decision:
The Bavarian State Social Court emphasized that, in the interest of legal certainty, compliance with formal requirements must not depend on the court's conduct (here: printing the PDF file). The court thus deviates from earlier decisions of the Federal Court of Justice and the State Social Court of Saxony-Anhalt (see Federal Court of Justice, decision of July 15, 2008, X ZB 8/08 and State Social Court of Saxony-Anhalt, decision of January 18, 2011, L 5 AS 433/10 B).
This ruling clarifies that currently, lawsuits and appeals cannot be filed legally via email. For legal remedies in social court proceedings, only the Federal Social Court currently has an "electronic mailbox" for which the special transmission software "EGVP" is required.
This will not always be the case: The introduction of electronic legal communication at the Bavarian social courts has now reached the testing phase. However, until this phase is completed and electronic legal communication is fully implemented, legally secure access to the social and state social courts will remain limited to mail and fax.
Full text here: sozialgerichtsbarkeit.de
3. Decision on employment promotion according to the German Social Code, Book III (SGB III)
3.1 – Social Court Dortmund, Judgment of 27 February 2012, Case No.: S 31 AL 262/08
Important reason for leaving work: No suspension of unemployment benefits
If a pregnant woman concludes a termination agreement with her employer in order to move to another city to be with the child's father, the imposition of a waiting period before unemployment benefits can fail due to the existence of an important reason for leaving the job.
The Dortmund Social Court ruled in the case of a cleaning woman from Berlin who quit her job in her fifth month of pregnancy to move to Bochum to be with her partner. The Bochum Employment Agency had ordered a twelve-week suspension of her unemployment benefits during a waiting period for job abandonment. The court found that the woman had terminated her employment and thus intentionally caused her unemployment without a valid reason.
Following a lawsuit filed by the insured, the Dortmund Social Court overturned the employment agency's decision. While the plaintiff had intentionally brought about her unemployment, she had a valid reason for doing so. Continuing her employment in Berlin was no longer reasonable for her.
Due to health problems during her pregnancy, including periods of incapacity for work and the risk of miscarriage, the plaintiff needed the support of the child's father in Bochum, also in the interest of the unborn child. This was only possible if the plaintiff gave up her job in Berlin and moved to Bochum.
sozialgerichtsbarkeit.de
Full text here: sozialgerichtsbarkeit.de
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
