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 14 September 2012, – L 18 AS 2308/12 B ER
A power outage is an emergency situation comparable to homelessness, which obliges benefit providers to grant loans.
The job center is to assume electricity debts as a loan in accordance with Section 22 Paragraph 8 Sentence 2 of the German Social Code, Book II (SGB II), which stipulates that "intended discretion" leads to an obligation to grant benefits, unless an atypical case exists. A power cut is to be considered such a comparable emergency, as the inability to use household energy directly affects the living situation.
Note:
See also the decision of the State Social Court of Saxony-Anhalt dated March 13, 2012, - L 2 AS 477/11 B ER
1.2 – Berlin-Brandenburg State Social Court, Decision of 05.09.2012, – L 14 BK 2/12 B ER
No assumption of student transport costs within the meaning of Section 28 Paragraph 4 SGB II, because in principle, transport costs are not to be granted if a student attends a school that is not considered "nearest" in this sense instead of the nearest school of the respective educational track (primary school, grammar school, etc.), but at most those costs that could be claimed if the nearest school had been chosen.
Schools with a special character or schools with special school profiles (e.g. Waldorf, Montessori, etc.) do not constitute an independently selectable educational track, but rather are optional choices within the primary school track, which is the only elective track here due to the student's age (cf. Higher Administrative Court Berlin-Brandenburg, judgment of February 24, 2012 – OVG 3 B 18.09 –, para. 28 regarding the compulsory all-day school, which does not constitute an independent educational track).
Note:
See also the decision of the Berlin-Brandenburg State Social Court of 29 June 2012, – L 28 AS 1153/12 B ER.
1.3 – Schleswig-Holstein State Social Court, decision of 09.07.2012,- L 6 AS 12/12 B
No grant of legal aid for a standard benefit claim if the legal action is frivolous.
In principle, no legal aid is granted for court proceedings that solely assert the unconstitutionality of the standard rate since January 1, 2011, unless the plaintiffs have unsuccessfully attempted to achieve their objective in a simpler and more cost-effective way.
If the court proceedings exclusively concern the unconstitutionality of the standard benefit rates and the specific case does not exhibit any special features that could be of constitutional relevance, a stay of proceedings pursuant to Section 202 of the Social Court Act (SGG) in conjunction with Section 251 of the Code of Civil Procedure (ZPO) is possible and appropriate upon application by the parties. However, legal representation is not required for such formally stayed or postponed proceedings (see also the decision of the Higher Social Court of Berlin-Brandenburg of February 29, 2012 – L 14 AS 206/12 B PKH).
Even if legal proceedings are pending or unavoidable, legal representation is not required solely for the purpose of pursuing constitutional aspects within the meaning of Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
sozialgerichtsbarkeit.de
Note:
Different view: LSG NRW, decision of 04.10.2012, – L 7 AS 1491/12 B ; decision of 28.09.2012, – L 6 AS 1895/11 B.
The right to legal aid exists for the first court proceeding in which the unconstitutionality of the standard benefit rates is asserted.
For further periods, the same beneficiary is generally not entitled to legal aid if the circumstances of the case are parallel (Federal Constitutional Court, decision of 30 May 2011 – 1 BvR 3151/10 para. 12; decision of 2 September 2010 – 1 BvR 1974/08 para. 13 ff.).
1.4 – North Rhine-Westphalia State Social Court, Decision of October 4, 2012, – L 12 AS 1330/12 NZB
The question of the necessity of retaining a lawyer in the preliminary proceedings must be answered in the affirmative if, due to the party's personal circumstances and the complexity of the matter, it is unreasonable to expect them to conduct the preliminary proceedings themselves, or if, from a subjective ex-ante perspective, the party could reasonably consider it necessary to be supported by a lawyer in the preliminary proceedings and subsequently retained one (Munich State Social Court, Judgment of May 12, 2010 – L 16 AS 829/09 with further references; North Rhine-Westphalia State Social Court, Decision of January 11, 2012 – L 19 AS 1975/11 B).
1.5 – North Rhine-Westphalia State Social Court, decision of 08.10.2012,- L 12 AS 1442/12 B ER
The assumption of repeated electricity debts is not justified within the meaning of § 22 para. 8 sentence 2 SGB II if reasonable self-help options have not been exhausted.
It was and is reasonable to expect the Hartz IV recipient to seek out other electricity providers, as she has obviously already switched electricity providers once.
It is also reasonable for her to take legal action against a threatened or implemented electricity disconnection through civil proceedings (LSG NRW decision of 20.08.2012 – L 2 AS 1415/12 B ER; LSG Berlin-Brandenburg decision of 05.08.2011 – L 5 AS 1097/11 B ER).
Note:
A very questionable decision that contradicts other court rulings on this subject.
Namely, a different view: North Rhine-Westphalia State Social Court, decision of 18 July 2012, - L 7 AS 1256/12 B ER
A recipient of basic income support for job seekers should not be invariably referred primarily to the use of civil legal protection in the event of a threatened electricity disconnection.
According to Section 2 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), an employable person entitled to benefits must exhaust all possibilities to end or reduce their need for assistance. However, this does not mean that the person entitled to benefits can always be referred to civil court proceedings for preliminary legal protection regarding outstanding energy costs.
According to the legal opinion of several civil courts, the energy supplier is only obliged to resume the interrupted energy supply once all outstanding energy costs have been paid (cf. Gotzen, ZfF 2007, p. 248, 249 f. regarding the civil law situation).
1.6 – North Rhine-Westphalia State Social Court, decision of 15 October 2012, - L 6 AS 1503/12 B ER
Bulgarian nationals are entitled to ALG II within the framework of the balancing of interests.
There is strong support for the view that Article 4 of Regulation (EC) No 883/2004 supersedes the exclusion of benefits and that applicants can derive entitlement to benefits directly from this provision, just as German nationals are entitled to them (see, for example, the decisions of the Higher Social Court of Berlin-Brandenburg of 29 June 2012 – L 14 AS 1460/12 B ER – ; of 23 May 2012 – L 25 AS 837/12 B ER – ; Higher Social Court of Hesse of 14 July 2011 – L 7 AS 107/11 B ER – (affirmative); contra: Higher Social Court of Berlin-Brandenburg of 12 June 2012 – L 20 AS 1322/12 B ER; Higher Social Court of Lower Saxony-Bremen of 23 May 2012 – L 9 AS 347/12 B ER -).
1.7 – Bavarian State Social Court, decision of 20 September 2012, – L 7 AS 633/12 B ER
1. By way of preliminary legal protection, the standard benefit period of six months can be taken into account in such a way that benefits under the SGB II are granted provisionally for six months from the date of application for preliminary legal protection in court.
2. Whether benefits must be granted to Italian nationals under a European equal treatment law is to be clarified in the main proceedings.
Note:
See also the decision of the Berlin-Brandenburg State Social Court 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.
1.8 – Hessian State Social Court, decision of 19.09.2012, – L 7 AS 30/12 B ER
The exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II), does not apply to foreigners who have entered Germany to exercise parental responsibility for a minor unmarried Union citizen (German) under Section 28 Paragraph 1 No. 3 of the German Residence Act (AufenthG), provided that the provision is interpreted restrictively in accordance with the German Constitution (Article 6 of the Basic Law) and European law (Article 20 of the Treaty on the Functioning of the European Union).
1.9 – State Social Court of Saxony-Anhalt, decision of 19.09.2012, – L 5 AS 613/12 B ER
The desire to move in with a boyfriend does not necessitate the relocation of a person under 25 from their parents' home, as it is not a similarly serious reason as the unreasonableness of being referred to the parents' home for serious social reasons within the meaning of Section 25 Paragraph 1 Sentence 2 No. 1 SGB II.
1.10 – State Social Court of Saxony-Anhalt, decision of 11.09.2012, – L 5 AS 461/11 B –
The relocation of the under-25-year-old trainee from her parents' home was necessary because the commuting times were unreasonable for her, thus for the purpose of retaining her apprenticeship position.
1.11 – State Social Court of Saxony-Anhalt, Judgment of May 24, 2012, – L 2 AS 397/10 –
One-euro jobs are only paid if attendance is guaranteed
If a recipient of benefits under the German Social Code, Book II (SGB II), participates in a work opportunity, they only receive compensation for the time spent at the event. No payment is made for absences due to illness. This is because there is neither an employment relationship nor are there any actual additional expenses incurred during this time that would require compensation. The costs for purchasing three aprons and two pairs of rubber gloves will not be reimbursed if the flat-rate compensation paid exceeded the total actual expenses.
1.12 – State Social Court of Saxony-Anhalt, decision of 10 September 2012, - L 5 AS 562/12 B ER
Lack of local jurisdiction does not preclude the basic income support provider from being obligated to grant the applicant (fairground operator) standard benefits provisionally within the framework of the balancing of interests, especially since local jurisdiction is not a prerequisite for benefits in the strict sense (cf. Federal Social Court, judgment of 23 May 2012, B 14 AS 133/11 R, para. 19).
The legal principle of Section 16 of the German Social Code, Book I (SGB I) must be applied, according to which the individual's claim for social benefits must not fail due to divisions of responsibility within the structured social administration (Federal Social Court, Judgment of July 17, 1990, 12 RK 10/89, para. 18).
This is not contradicted by the provision of Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), which has the function of excluding benefits if this consent is lacking; the consent of the basic income support provider to the absence from the place of residence is not a prerequisite for an entitlement to benefits under the SGB II.
1.13 – VG Mainz, dated 18.09.2012 – 1 L 1051/12.MZ
Communal accommodation is also acceptable for religious reasons
Because accommodation does not have to accommodate every religious aspect of private life.
Note:
A person in need of assistance is not required to be referred to a homeless shelter to meet their accommodation needs, but is entitled to rent their own apartment (cf. LSG NRW, decision of 26.11.2009 – L 19 B 297/09 AS ER ; Berlit in LPK-SGB II, 3rd ed., § 22 Rn 12 with references to case law).
2. Decisions of the State Social Courts on Social Assistance (SGB XII)
2.1 – Bavarian State Social Court Judgment of 20 October 2011, – L 18 SO 79/10
Russian pensions paid during retirement are considered income within the meaning of Section 82 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII).
This also applies if the recipient of aid has come to Germany as a so-called quota refugee.
2.2 – Bavarian State Social Court, Judgment of 20 December 2011, – L 8 SO 45/11
1. A declared refusal to financially support one's partner is not credible if external circumstances contradict it.
2. If a relationship persists for more than 9 years despite repeated declarations that the economically better-off partner does not wish to financially support the plaintiff, a cohabiting partnership exists.
3. Assistance for subsistence does not allow for determinations on the basis of eligibility, because the entitlement arises precisely from the existence or non-existence of a need despite the use of income and assets.
4. Benefits for accommodation are actual reimbursement of expenses related to the specific use by the recipient of the benefit, not to civil law arrangements.
5. On (sub)lease agreements between partners in a cohabiting relationship
6. Since the ruling of the Federal Constitutional Court of 17 November 1992, file number: 1 BvL 8/87 on § 137 para. 2a AFG (E 87, 234, 264), a cohabiting partnership is understood to be, in addition to the household and economic community that is required at least in any case, a community in which the ties between the partners are so close that mutual support can be expected from them in the emergencies and vicissitudes of life.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
