1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Berlin-Brandenburg State Social Court, decision of 06.08.2012, – L 5 AS 1749/12 B ER
The exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is in conformity with European law.
The EFA reservation is not subject to any objections under international law. The reservation is also in accordance with constitutional law.
1.2 – Berlin-Brandenburg State Social Court, decision of 08.08.2012, – L 18 AS 424/12 B PKH –
The abstract determination of the necessity of the move cannot be made by means of an assurance (cf. BSG, judgment of 6 April 2011 – B 4 AS 5/10 R –).
Various opposing views can be found at: www.fluechtlingsinfo-berlin.de (pdf) and
www.tacheles-sozialhilfe.de.
1.3 – Berlin-Brandenburg State Social Court, Judgment of 19 July 2012, – L 5 AS 575/09 –
Section 65e sentence 2 of the German Social Code, Book 2 (SGB 2) limits the possibility of offsetting overpaid social assistance benefits in the past to the first two years of benefit provision under the SGB 2.
Therefore, if benefits had been received continuously since the SGB 2 came into force, no offsetting was permitted after the end of 2006.
1.4 – Berlin-Brandenburg State Social Court, decision of 05.07.2012, – L 29 AS 1244/12 B ER –
A Spanish citizen is not entitled to ALG 2 (unemployment benefit II).
Section 7 paragraph 1 sentence 2 number 2 of the German Social Code, Book II (SGB II) is compliant with European law. The EFA reservation is effective.
Note:
LSG Berlin-Brandenburg, decision of 19 May 2012, - L 19 AS 794/12 B ER -
A Spanish woman entitled to freedom of movement who has been residing in Germany for more than three months to seek employment is entitled to basic income support benefits under Book II of the German Social Code (SGB II) in preliminary legal proceedings. The exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 of Book II of the German Social Code (SGB II) does not apply to nationals of a contracting state of the European Social Security Convention (ESC).
The reservation declared by the Federal Government with effect from December 19, 2011, regarding benefits under the German Social Code, Book II (SGB II), pursuant to Article 16(b) of the European Framework Agreement (EFA), does not effectively preclude the receipt of basic income support benefits in the present situation.
www.asyl.net
1.5 – Berlin-Brandenburg State Social Court, decision of 25.07.2012,- L 29 AS 1504/12 B ER –
Section 7 para. 1 sentence 2 no. 2 SGB II is in conformity with European law.
EFA reservation is effective.
Note:
Established case law of the 29th Senate (see decisions of 4 June 2012, L 29 AS 652/12 B ER, 7 June 2012, L 29 AS 920/12 B ER and 12 June 2012, L 29 AS 1044/12, L 29 AS 914/12 B ER and 4 July 2012, L 29 AS 1244/12 B ER).
1.6 – Berlin-Brandenburg State Social Court, decision of 02.08.2012, – L 5 AS 1297/12 B ER –
Greek citizen has no entitlement to ALG II.
The exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is in conformity with European law.
The EFA reservation is not subject to any objections under international law. The reservation is also in accordance with constitutional law.
1.7 – Berlin-Brandenburg State Social Court, judgment of 19 July 2012, - L 5 AS 511/11 -, appeal allowed.
There are no European law concerns regarding the exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II.
1.8 – Bavarian State Social Court, decision of 28 March 2012, – L 7 AS 131/12 B ER –
A recipient of unemployment benefit II can only claim the costs for dressing materials required for medical treatment from their statutory health insurance fund and within the framework of Sections 27 et seq. of the German Social Code, Book V (SGB V), but not as an additional need according to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
1.9 – Bavarian State Social Court, Judgment of 27 June 2012, – L 16 AS 449/11 –
The family members of a foreigner who is an employee, self-employed person, or entitled to freedom of movement under Section 2 Paragraph 3 of the Freedom of Movement Act/EU are exempt from the exclusion from benefits for the first three months in accordance with Section 7 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book II (SGB II). The exclusion clause in Section 7 Paragraph 1 Sentence 2 Number 1 of the SGB II is clearly incorrectly worded and must be interpreted in accordance with European law as follows:
The following are exempt:
1. Foreigners who are neither employees nor 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, nor their family members, for the first three months of their stay.
2. According to Section 7 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book II (SGB II), as interpreted above, family members of German citizens are not subject to the exclusion from benefits for the first three months of their stay. This a fortiori reasoning in favor of those affected avoids a conflict with the fundamental rights protection obligations under Article 6 Paragraphs 1 and 4 of the German Basic Law (GG) and with the fundamental right to a guaranteed minimum standard of living under Article 1 Paragraph 1 GG in conjunction with the social welfare principle of Article 20 Paragraph 1 GG when family members of foreign relatives of German citizens join their families.
Note:
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, self-employed person or person entitled to freedom of movement under Section 2 Paragraph 3 of the Freedom of Movement Act/EU (FreizügG/EU).
1.10 – Bavarian State Social Court, Judgment of 21 March 2012, – L 16 AS 789/10 –
Income from a company in which the benefit recipient – for example, as the sole shareholder-managing director – can decide on withdrawals independently of the will of others, is attributed to the benefit recipient as their own income within the meaning of Section 11 of the German Social Code, Book II (SGB II).
www.gesetze-bayern.de
1.11 – State Social Court of Saxony-Anhalt, decision of 09.11.201, – L 5 AS 464/10 –
No deduction of car loan installments from earned income.
2. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
2.1 – Social Court Trier, Decision of 25 June 2012, – S 4 AS 239/12 ER –
1. A community of need established by Section 7 Paragraph 3 No. 3 c SGB II does not end due to a merely temporary period of pre-trial detention.
2. The standard allowance pursuant to Section 20 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) shall not be granted as long as the conditions of Section 7 Paragraph 3 No. 3c of the German Social Code, Book II (SGB II) in conjunction with Section 20 Paragraph IV of the German Social Code, Book II (SGB II) are still met.
3. The additional needs allowance pursuant to Section 21 Paragraph 3 of the German Social Code, Book II (SGB II) is to be granted as soon as care and upbringing by the incarcerated partner is no longer actually possible.
www.mjv.rlp.de
2.2 – Social Court Mainz, decision of 20 March 2012, – S 10 AS 178/12 ER –
1. Monthly annuity payments may be covered as accommodation costs under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if the transfer of ownership of the property has already taken place and the recipients of assistance do not accumulate assets (contrary to the ruling of the Higher Social Court of North Rhine-Westphalia of February 20, 2008, S 12 AS 20/07).
2. Costs for building insurance, chimney sweeping, etc., are to be included in full as a need for property owners within the framework of housing costs in the months in which they are incurred, and not in a monthly partial amount on an annual basis (cf. BSG, judgment of 24.02.2011, B 14 AS 61/10 R).
3. Decisions of the social courts on social assistance (SGB XII)
3.1 – Social Court Aachen, judgment of 03.07.2012,- S 20 SO 52/11 -, appeal pending before the Higher Social Court of North Rhine-Westphalia under file number L 20 SO 347/12.
Lactose intolerance does not justify additional expenses due to a costly diet.
Note:
See also (SG Detmold, judgment of 15.06.2010 – S 2 [6] SO 141/07; SG Karlsruhe, judgment of 31.03.2011 – S 4 AS 2616/09; LSG NRW, decision of 04.04.2011 – L 6 AS 2205/10 B ER and L 6 AS 2206/10 B).
4. The protection of social benefits during account seizure
An article by Claus Richter, printed in Info, issue 04/2012
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
