1. Decision of the Federal Social Court of 22 March 2012 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 22.03.2012, – B 4 AS 102/11 R –
Exclusion from benefits for students during a leave of absence only applies if they are organizationally affiliated with the university and are pursuing their studies
1.2 – BSG, Judgment of 22.11.2011, -B 4 AS 138/10 R –
The recommendations of the German Association of 1 October 2008 on the granting of dietary allowances in social assistance (DV) are not an anticipated expert opinion.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, Judgment of 21 March 2012, – L 16 AS 616/10 –
The social unacceptability of the conduct of the person who is allegedly liable for compensation is an unwritten element of the legal claim for compensation. The requirement of social unacceptability, developed in social welfare law, also applies to claims for compensation under Section 34 of the German Social Code, Book II (SGB II).
As in social assistance law, the claim for reimbursement under Section 34 of the German Social Code, Book II (SGB II) requires that the conduct in question of the person liable for reimbursement must be objectively socially unacceptable. The mere fact that a (culpable) conduct is the cause is not sufficient to establish a claim for reimbursement.
Conduct is considered socially unacceptable if the action or omission of the person who is to be held liable for damages is objectively reprehensible, whereby the specific circumstances of each individual case must always be taken into account. Only once it has been established that the conduct in question is to be considered socially unacceptable are the questions of fault and then of the existence of a valid reason to be examined (see Federal Administrative Court, judgment of June 24, 1976, VC 41.74, juris para. 14; judgment of January 14, 1982, 5 C 70/80, juris paras. 9, 11; see also Higher Social Court of Berlin-Brandenburg, decision of July 10, 2007, L 5 B 410/07 AS).
2.2 – Bavarian State Social Court, Judgment of 02.02.2012, – L 11 AS 284/11 –
The costs incurred in connection with conducting criminal rehabilitation proceedings are not an unavoidable need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
Inevitability in this sense exists only if it is an urgent need, the fulfillment of which is necessary in order to ensure a dignified, socio-cultural minimum standard of living in the specific individual case (Münder in LPK-SGB II, 4th ed. § 21 para. 38).
However, this only arises when the need is so substantial that the total amount of benefits granted to the person in need – including benefits from third parties and taking into account the person's potential savings – no longer guarantees a dignified minimum standard of living (see Federal Constitutional Court, judgment of 09.02.2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – Juris Rn. 208 = BGBl I 2010, 193ff).
Furthermore, it must be a permanent need, the fulfillment of which by granting loans alone must appear inappropriate (cf. BVerfG aaO Rn.207).
2.3 – Bavarian State Social Court, decision of 20 March 2012, – L 7 AS 91/12 B ER –
No Hartz IV benefits as a subsidy, because the single applicant owns a house with 130 square meters of living space; according to the established case law of the Federal Social Court (see judgments of 15.04.2008, B 14 AS 34/06 R and 02.07.2009, B 14 AS 33/08 R), only a living space of 90 square meters is appropriate for one or two persons.
2.4 – North Rhine-Westphalia State Social Court, Judgment of 26 March 2012, – L 19 AS 708/10 –
The public-law claim for reimbursement is an independent legal institution recognized under customary law and derived from general principles of administrative law.
This claim compensates for a financial situation that is not in accordance with the law and grants the claimant a right to the return of what was obtained if a payment was made without legal basis or without any other unjustified transfer of assets. Its prerequisites and legal consequences correspond, insofar as they are not regulated by specific legislation, to those of a civil law claim for unjust enrichment. Within the scope of the German Social Code, Book II (SGB II), such a claim is possible if a person in need of assistance has performed work after being assigned to a work opportunity in return for additional expense allowances, work which proves to be without legal basis (see Federal Social Court (BSG) judgment of August 27, 2011 – B 4 AS 1/10 R = juris para. 24 with further references).
However, the financial benefit required for a public-law claim for reimbursement has not occurred for the defendant.
Such an increase in assets exists if a work opportunity does not meet the requirements of Section 16 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) in its former version (see Federal Social Court (BSG) judgments of August 27, 2011 – B 4 AS 1/10 R = juris Rn 27f and of April 13, 2011 – B 14 AS 98/01 R = juris Rn 17f). The work performed by the plaintiff within the framework of the work opportunity met the requirements of Section 16 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) in its former version.
2.5 – Lower Saxony-Bremen State Social Court, decision of 04.04.2012, – L 15 AS 77/12 B ER –
The suspensive effect of an objection is, in principle, to be ordered in full pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Courts Act (SGG) if individual provisions of an integration administrative act pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) prove to be unlawful.
An integration agreement or an administrative act replacing it represents the instrument of an integration strategy adapted to the individual case with a multitude of coordinated measures, so that the assumption required for the divisibility of such an administrative act, namely that it would have been issued by the authority even without the regulations recognized as unlawful, is fundamentally not justified.
www.rechtsprechung.niedersachsen.de
Note: See also here: Beier Law Firm – Beier … on decisions regarding unlawful integration administrative acts
www.tacheles-sozialhilfe.de
2.6 – State Social Court of Mecklenburg-Vorpommern, decision of 07.03.2012, – L 8 B 489/10 ER –
The exclusion clause of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II is not applicable to Austrian citizens who are legally entitled to stay in the Federal Republic of Germany solely for the purpose of seeking employment.
Austrian citizens can invoke the principle of equal treatment under the bilateral agreement between the Federal Republic of Germany and the Republic of Austria on welfare and youth welfare of 17 January 1966 (FürsAbk AUT).
Unemployment benefit II is welfare within the meaning of the abbreviation AUT.
The principle of equal treatment under Article 2(1) of the Austrian Agreement on Foreigners (FürsAbk AUT) does not apply solely to persons in need of assistance who were already residing in the host country before becoming in need of assistance.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Berlin, decision of 25.04.2012, – S 78 AS 8137/12 ER –
The exclusion of EU citizens (Greeks) seeking employment from benefits is (still) unlawful.
There are considerable concerns regarding the applicability of the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II), in the case of an employable Greek national, both with regard to Article 4 of Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and with regard to the European Social Security Agreement (ESA) of 11 December 1953, which was ratified by the Federal Republic of Germany and Greece.
The reservation declared by the Federal Republic of Germany with regard to the EFA on December 15, 2011 is probably ineffective, as this statement is ineffective in relation to the meaning and purpose of this agreement.
Not yet published
3.2 – SG Berlin, decision of 29.03.2012, – S 159 AS 5473/12ER –
For the interpretation of the term "habitual residence" within the meaning of Section 7 Paragraph 1 Sentence 1 Number 4 of the German Social Code, Book II (SGB II), only Section 30 Paragraph 3 Sentence 2 of the German Social Code, Book I (SGB I) is relevant.
What is of decisive importance here are the actual ascertainable circumstances and not the immigration status of a person in need.
For immigrants with an unlimited residence or settlement permit, a residence requirement also imposed by the regulatory authority for the receipt of benefits under the German Social Code, Book II (SGB II), is irrelevant, as this case is not covered by the exclusion rule stipulated in Section 7 Paragraph 1 Sentence 2 of the SGB II.
Not yet published
3.3 – SG Berlin, decision of 05.04.2012, – S 37 AS 8238/12 ER –
A blanket reference to clothing banks is incompatible with the obligation to guarantee a minimum standard of living, which is rooted in Article 1 of the Basic Law.
Because the needs according to § 24 para. 3 SGB II are also part of securing existence or the subsistence minimum and are designed as a mandatory benefit.
The possibility under the German Social Code, Book II (SGB II), of providing benefits in kind requires a corresponding decision by the benefit provider, which, in the case of choosing to provide benefits in kind, only leads to the fulfillment of the need if the provider grants an entitlement to the requested benefits in a timely and reasonable manner.
Not yet published
3.4 – SG Berlin, decision of 10.04.2012, – S 37 AS 8126/12 ER –
The exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) violates the principle of equal treatment under Article 4 of Regulation (EC) No. 883/2004 (following the ruling of the Social Court of Dresden of 5 August 2011 – S 36 AS 3461/11 ER with further references).
According to the prevailing opinion of the Higher Social Courts (LSG Berlin-Brandenburg, judgment of May 17, 2011 – L 28 AS 566/11 ER-B; judgment of September 30, 2011 – L 14 AS 1148/11 B ER; LSG North Rhine-Westphalia, judgment of May 17, 2011 – L 6 AS 356/11 B ER; LSG Lower Saxony-Bremen, judgment of August 11, 2011 – L 15 AS 188/11 B ER; LSG Schleswig-Holstein, judgment of September 14, 2011 – L 3 AS 155/11 B ER; LSG Baden-Württemberg, judgment of October 24, 2011 – L 12 AS 3938/11 ER-B; LSG Saxony-Anhalt, judgment of November 14, 2011 – L 5 AS 406/11 B ER), due to the complex legal situation in preliminary injunction proceedings, to decide by weighing the consequences.
Not yet published
3.5 – SG Leipzig, decision of 28.03.2012, – S 20 AS 852/12 ER –
EU foreigners will initially continue to receive unemployment benefit II – exclusion from benefits by the job center is unlawful
A Greek citizen with a freedom of movement certificate (BSG, judgment of 19.10.2010 - B 14 AS 23/10 R) is entitled to ALG II.
Not yet published
Note: See also here: Exclusion from benefits by job centers is illegal
www.tacheles-sozialhilfe.de
3.6 – SG Dresden, decision of 02.02.2012, – S 17 AS 3/12 ER –
In the absence of a conclusive concept for determining the appropriateness of accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the housing benefit table according to Section 12 of the German Housing Benefit Act (WoGG), plus a moderate supplement of up to ten percent, shall be applied.
If an employable person entitled to benefits lives in a household with her 20-year-old son, who is a student receiving benefits under the BAföG (Federal Training Assistance Act), the BKGG (Federal Child Benefit Act) and maintenance from his father, his income is not to be taken into account as reducing his mother's needs in accordance with Section 9 Paragraph 5 of the SGB II (Social Code, Book II), if this student cannot fully cover his necessary living expenses without the child benefit.
www.maennernetzwerk-dresden.de (pdf)
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – SG Oldenburg, decision of 16.02.2012, – S 22 SO 18/12 ER –
If it is not established whether a person living on benefits pursuant to Sections 41 et seq. of the German Social Code, Book XII (SGB XII) has statutory health insurance coverage, and a difficult main proceeding is still pending before the social court, but the applicant urgently needs treatment and extensive medical care, the social welfare provider must be obligated to provide health care benefits pursuant to Section 48 Sentence 1 of the German Social Code, Book XII (SGB XII).
Not yet published
4.2 – Social Court Dresden, Judgment of 06.05.2011, – S 19 SO 45/08 –
Assistance for appropriate schooling within the meaning of Section 54 Paragraph 1 Sentence 1 No. 1 SGB XII also includes the financing of an integration assistant.
The social welfare provider is bound by the decision of the school administration and cannot, at its own discretion, refer disabled students to a special needs school.
Only the school authorities decide to what extent a particular schooling corresponds to the mental and physical abilities of a disabled person.
The necessary costs for a qualified integration assistant are to be covered by the social welfare office, insofar as the implementation of school services, including the school's support services, is affected.
The support and guidance of the class teacher in the creation, implementation and adaptation of the support plan, as well as in clarifying the disability-related needs, is the responsibility of the school and must be financed by the school.
Author of the case law ticker: Willi 2 from Tacheles.
Source: Tacheles case law ticker, www.tacheles-sozialhilfe.de
