1. Decisions of the Federal Social Court of 19 June 2012 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 19.06.2012, – B 4 AS 142/11 R –
No reimbursement of necessary expenses for appropriate legal action pursuant to Section 63 of the German Social Code, Book X (SGB X).
1.2 – BSG, Judgment of 19.06.2012, – B 4 AS 163/11 R –
Expenses for business attire and hairdressing visits cannot be deducted from income.
Employee contributions within the framework of asset-building benefits are not deductible from income (see already BSG judgment of 27.2.2008 – B 14/7b AS 32/06 R, BSGE 100, 83 = SozR 4-4200 § 20 No. 6, para. 50).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Rhineland-Palatinate, decision of 21.08.2012,-L 3 AS 250/12 B ER –
Luxembourger seeking work receives Hartz IV
1. The exclusion of EU citizens who are in Germany solely for the purpose of seeking employment from benefits under the German Social Code, Book II (SGB II), as provided for in Section 7 Paragraph 1 Sentence 2 Number 2 SGB II, does not violate the principle of equal treatment with regard to social security benefits as laid down in Article 4 of Regulation (EC) No 883/2004.
EU citizens who have already established a genuine connection to the German labor market must not be excluded from benefits to secure their livelihood under the German Social Code, Book II (SGB II), simply because they are staying in Germany solely for the purpose of seeking employment.
2. Benefits under the German Social Code, Book II (SGB II), to secure the livelihood of employable persons in need of assistance are not social assistance within the meaning of Article 24(2) of Directive 2004/38/EC.
3. On the question of the effectiveness of the Federal Government's reservation against the application of the EU Agreement on the Protection of Livelihoods to benefits for securing subsistence under Book II of the German Social Code (SGB II).
www.mjv.rlp.de
Note:
Legal remedies against the rejection of unemployment benefit II for EU citizens – German reservation against the EFA is ineffective.
By Georg Classen, as of August 22, 2012
www.fluechtlingsinfo-berlin.de (pdf)
2.2 – State Social Court of Saxony-Anhalt, Judgment of 21 June 2012, – L 5 AS 67/09 –
The job center will not cover the housing costs because the fact that the rental income was not declared in the tax return suggests that there is no actual rental agreement between relatives.
(sozialgerichtsbarkeit.de
Note:
Actual expenses for an apartment also exist if the person in need of assistance is subject to a valid and not permanently deferred rent claim during the respective benefit period (cf. Federal Social Court – BSG – of 7 November 2006 – B 7b AS 8/06 R, para. 34) (cf. BSG of 3 March 2009 – B 4 AS 37/08 R –, para. 24; BSG of 25 August 2011, B 8 SO 29/10 R –, para. 13).
2.3 – State Social Court of Saxony-Anhalt, Judgment of 22 March 2012, – L 2 AS 25/10 –
Contact with advisors based on the general duty of the benefit provider to provide advice and support (§§ 13, 14 of the German Social Code, Book I, as well as the special duty to provide advice in the German Social Code, Book II, pursuant to § 14 sentence 1 of the German Social Code, Book II) is not yet sufficient to give rise to an additional need for disability (cf. Federal Social Court, judgment of April 6, 2011 – B 4 AS 3/10 R).
Note:
Only when participating in a measure can it be generally assumed that additional expenses will arise, which must be compensated for by including an additional allowance in the calculation of the total needs (see also BSG, judgment of March 22, 2010, file no. B 4 AS 59/09 R).
2.4 – State Social Court of Saxony-Anhalt, decision of 06.08.2012, – L 5 AS 339/12 B ER –
There is regularly no ground for an order if trivial amounts are claimed by way of preliminary legal protection (established case law of the Senate, cf. decision of 30 March 2009, file no.: L 5 B 121/08 AS ER).
In disputes concerning benefits that do not exceed five percent of the monthly standard benefit (currently €18.80), insufficient payments by the benefit provider do not typically constitute an existential, i.e., acute, financial hardship that warrants preliminary legal protection. The applicant must then proceed to the main proceedings.
Note:
Regarding the article by Udo Geiger, "No legal aid in minor cases?", see Info also 2009, p. 105,
www.info-also.nomos.de (pdf)
Regarding the article by Udo Geiger, "No rejection of legal aid for trivial proceedings", Info also 4/2011, page 171,
www.info-also.nomos.de
2.5 – State Social Court of Saxony-Anhalt, Judgment of 21 June 2012, – L 5 AS 261/10 –
The start-up grant is not required if the employment relationship is commenced even without the granting of a start-up grant and thus integration has taken place even without funding (cf. Bavarian State Social Court, judgment of November 20, 2011, L 7 AS 643/11, regarding the requested funding of an already performed activity).
2.6 – Thuringian State Social Court, Judgment of 22 February 2012, – L 4 AS 1685/10 –
A diet consisting of a whole food in the case of lactose intolerance does not fall under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), because it is not a medical diet to which the regulation refers, but rather a way of eating that is based on the ideal of a healthy person.
Note:
The following question regarding additional needs for lactose intolerance is pending before the Federal Social Court.
Can lactose intolerance justify an additional allowance due to a costly diet according to § 21 para. 5 SGB 2?
Lower court: Social Court Freiburg, S 20 AS 1559/11 -, judgment of 13 January 2012, pending before the Federal Social Court under file number B 14 AS 48/12 R
2.7 – North Rhine-Westphalia State Social Court, decision of 14.08.2012,- L 7 AS 1355/12 B ER –
Sanction not unlawful if the applicant has refused to provide information about health matters and to allow the disclosure and storage of personal data, citing the Federal Data Protection Act (BDSG).
Section 4 of the German Federal Data Protection Act (BDSG) stipulates that the collection, processing and use of personal data is only permissible if this Act or another legal provision allows or orders it, or if the data subject consents (according to Section 4a BDSG, SG Berlin, decision of 15.02.2012 – S 107 AS 1034/12 ER).
However, according to Section 1 Paragraph 3 of the German Federal Data Protection Act (BDSG), insofar as other federal legal provisions apply to personal data, these take precedence over the provisions of the BDSG (Federal Social Court, Judgment of 10 December 2008 – B 6 KA 37/07 R 1. Principle and Paragraph 33).
In this respect, a number of sector-specific special regulations (§§ 50 ff SGB II) as well as § 35 SGB I and §§ 67 ff. SGB X come into consideration (BSG, judgment of 25 January 2012 – B 14 AS 65/11 R17 ff.) are relevant, which, among other things, regulate the transfer of data to third parties commissioned with the performance of tasks under certain conditions (Lenze/Brünner in LPK-SGB II, 4th edition 2012, before §§ 50 Rn. 1 ff.).
sozialgerichtsbarkeit.de
Note:
Hartz IV recipients are not required to submit a CV to the training provider (SG Leipzig, decision of 29.05.2012, - S 25 AS 1470/12 ER -, unpublished).
2.8 – Berlin-Brandenburg State Social Court, decision of 29.06.2012, – L 28 AS 1153/12 B ER –
According to the clear wording of § 28 para. 4 SGB 2, only the necessary expenses for transport to the nearest school of the chosen educational program are taken into account.
According to the legislative materials, the benefit should also be limited to this amount if a student actually attends a school further away.
Insofar as the school laws of the Länder provide for full or partial reimbursement of costs, in particular by the providers of student transport, this must be taken into account (see Bundestag printed matter 17/4095 of 02.12.2010, p. 30).
There is therefore no basis for granting benefits for the costs of transporting the child to a more distant school or for reimbursing costs incurred for this purpose, on the basis of the aforementioned regulation.
Note:
If another school is attended, it must be proven that attending the nearest school is not possible (Münder, SGB II, 4th edition, para. 17 to § 28).
2.9 – Berlin-Brandenburg State Social Court, decision of 28 June 2012, – L 18 AS 1472/12 B ER –
Unemployment benefit II for Italian nationals in the context of the balancing of interests, because Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) violates the principle of equal treatment in Article 4 of Regulation (EC) No. 883/2004.
2.10 – Berlin-Brandenburg State Social Court, decision of 20.06.2012,- L 19 AS 1294/12 B ER –
Dutch national is not excluded from ALG 2.
The exclusion from benefits based solely on job seeking does not apply to nationals of a contracting state of the European Social Security Convention of 11 December 1953 (EFA).
EFA reservation is invalid.
2.11 – Berlin-Brandenburg State Social Court, decision of 07.08.2012, – L 18 AS 1908/12 B PKH –
The SGB II standard rates for single persons were not set too low by the legislator for the period from 1 January 2011 onwards in an unconstitutional manner (BSG, judgment of 12 July 2012 – B 14 AS 153/11 R -).
The arguments against the constitutionality put forward in parts of the literature and in the referral decision of the Social Court of Berlin of 25 April 2012 are not convincing (Judgment of 12 July 2012 – B 14 AS 153/11 R -).
2.12 – Berlin-Brandenburg State Social Court, Judgment of 11 July 2012, – L 28 AS 2230/10 –
The offsetting pursuant to Sections 42a and 43 of the German Social Code, Book II (SGB II) constitutes an administrative act aimed at a monetary benefit (see also: Hessian State Social Court, decision of January 26, 2012 – L 6 AS 676/11 B ER –, para. 4 et seq.; Berlin-Brandenburg State Social Court, decision of March 15, 2012 – L 29 AS 2120/1 B PKH-).
2.13 – Berlin-Brandenburg State Social Court of 21.08.2012, - L 36 AS 1162 /12 NK -, Appeal to the Federal Social Court admitted
Berlin Housing Expenses Ordinance: Application for judicial review of regulations inadmissible – The Berlin Housing Expenses Ordinance does not apply to recipients of social assistance (SGB XII).
Note:
The main part of the reasoning behind the decision in case no. L 36 AS 1162/12 NK can be found in the commentaries – starting with the commentary dated September 1, 2012.
sozialrechtsexperte.blogspot.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Dessau-Roßlau, Judgment of 17 August 2012, – S 11 AS 2430/11 –
A coherent concept for determining the appropriateness values exists if the preparer has proceeded systematically in the sense of systematically identifying and evaluating general, albeit location- and time-dependent, facts in the relevant comparison area as well as for all applications and not just on a case-by-case basis (BSG, Judgment of September 22, 2009, B 4 AS 18/09 R).
sozialgerichtsbarkeit.de
Note:
The restriction to data from certain building age categories for determining the limit of reasonableness is only permissible under certain strict conditions (BSG judgment of 19.10.2010 – B 14 AS 2/10 R, Rn 23, 24; judgment of 20.12.2011 – B 4 AS 19/11 R, Rn 30).
3.2 – Frankfurt Social Court, decision of 09.05.2012, – S 16 AS 538/12 ER –
No exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 1 SGB II for pregnant Iranian nationals in the case of family reunification with their spouse who has German citizenship.
3.3 – Social Court Speyer, decision of 27.03.2012, – S 6 AS 362/12 ER –
Attending a full-day school does not preclude entitlement to supplementary appropriate learning support under Section 28 of the German Social Code, Book II (SGB II), if this support is suitable and additionally necessary to achieve the essential learning objectives defined by school law.
For the granting of supplementary appropriate learning support within the meaning of Section 28 Paragraph 5 of the German Social Code, Book II (SGB II), an individual examination is required in each individual case and a prognostic assessment relating to the end of the school year must be made, taking into account the school's support services.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
