1. Decisions of the Federal Social Court of 30 January 2013 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 30 January 2013 – B 4 AS 54/12 R
Pregnant Bulgarian nationals are not excluded from receiving unemployment benefit II.
The anticipated birth of the child, who has a right, protected under Article 6 of the Basic Law, to the enabling and maintenance of a family relationship with both parents from birth, has implications for the residence rights of its parents. Thus, an independent right of residence already existed before the application for benefits under Book II of the German Social Code (SGB II) was filed.
1.2 – BSG, Judgment of 30 January 2013 – B 4 AS 37/12 R
A non-working foreigner is entitled to Hartz IV benefits if he moves to his German spouse (for the purpose of family reunification).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, decision of 19.12.2012 – L 7 AS 432/11
ALG II is only to be granted as a loan pursuant to Section 24 Paragraph 5 SGB II, because the co-ownership share in the house was realizable.
2.2 – Bavarian State Social Court, Judgment of 28 November 2012 – L 11 AS 79/09 ZVW
Entitlement to reimbursement of costs for storing temporarily unneeded personal belongings and furnishings if the accommodations assigned in a transitional housing facility do not offer sufficient space.
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BSG, Judgment of 16.12.2008 – B 4 AS 1/08 R
Costs for the temporary accommodation or storage of personal belongings can be considered accommodation costs.
2.3 – Bavarian State Social Court, decision of 18 December 2012 – L 11 AS 811/12 NZB
The appeal was not admitted due to the fundamental importance of the legal question regarding the reimbursement of expenses necessary for pursuing legal action.
According to the wording of Section 63 of the German Social Code, Book X (SGB X), consideration of the unconstitutionality of the amount of the standard benefit is not possible when deciding on costs.
2.4 – Bavarian State Social Court, decision of 19 December 2012 – L 11 AS 821/12 B ER –
For those receiving basic social security benefits and covered by statutory health insurance, the costs of medical treatment are either covered by the German Social Code, Book V (SGB V), or (supplementarily) by the standard benefit rate. Due to the necessity of obtaining non-prescription medications, there are generally no unavoidable ongoing expenses.
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Similarly – Federal Social Court (BSG), judgment of 26 May 2011 – B 14 AS 146/10 R
2.5 – State Social Court of Saxony-Anhalt, decision of 27 November 2012 – L 5 AS 902/12 B ER
Approval pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) regarding the appropriateness of the expenses for the new accommodation is not a prerequisite for the standard case pursuant to Section 22 Paragraph 6 Sentence 2 of the German Social Code, Book II (SGB II) (contra, without reasoning: Berlin-Brandenburg Higher Social Court, decision of January 25, 2011, L 14 AS 2337/10 B ER).
2.6 – Saxony-Anhalt State Social Court, Judgment of May 9, 2012 – L 5 AS 234/09, Appeal allowed.
The training allowance must be considered as income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), as it constitutes a monetary payment (see also Federal Social Court, Judgment of March 23, 2010, B 8 SO 17/09 R (23) regarding the crediting of training allowances under Section 82 of the German Social Code, Book XII (SGB XII)).
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Dissenting opinion: Social Court Kassel, judgment of 27.08.2012, - S 6 AS 12/12, appeal allowed
The training allowance granted as part of a vocational preparation measure pursuant to Section 106 Paragraph 1 No. 1 of the German Social Code, Book III (SGB III) is to be counted as income in the context of the German Social Code, Book II (SGB II).
However, 20% of this amount is to be excluded from income assessment as earmarked income.
2.7 – Hamburg State Social Court, Judgment of 30 October 2012 – L 4 AS 167/11
If the mere existence of an additional need due to costly nutrition leads to the receipt of basic income support for job seekers as a supplement, this does not trigger compulsory health and long-term care insurance.
A claim by a person entitled to benefits under the German Social Code, Book II (SGB II), against the benefit provider for the notification of certain insurance-related matters to other providers is unsuccessful because the notification by the SGB II benefit provider is not binding and the competent insurance providers alone have the authority to decide on compulsory health and long-term care insurance (see already the Senate's decision of November 24, 2010, L 5 AS 363/10 B ER).
2.8 – Hamburg State Social Court, Judgment of 07.01.2013 – L 4 AS 315/12
Income that a benefit recipient receives from renting out their own accommodation is not to be treated as income within the meaning of Section 11 of the German Social Code, Book II (SGB II), but directly reduces the accommodation expenses to be taken into account under Section 22 Paragraph 1 of the SGB II. (
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Similarly – Schleswig-Holstein Higher Social Court, judgment of 12 April 2010, L 6 AS 37/10
2.9 – Berlin-Brandenburg Higher Social Court, Decision of 28 January 2013 – L 14 AS 3133/12 B ER
The freedom of establishment granted to nationals of Member States by Article 49 TFEU includes (under certain conditions) the practice of self-employed prostitution – even without a “permanent establishment”; such self-employment gives rise to a right of residence independent of job seeking.
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LSG Berlin-Brandenburg, decision of 20.05.2008 – L 15 B 54/08 SO ER
The right of free movement of a self-employed foreign woman is not affected by the cessation of her activity due to pregnancy
2.10 – North Rhine-Westphalia State Social Court, decision of 18 January 2013 – L 6 AS 2124/11 B –
Costs for the compensation for use are accommodation costs pursuant to Section 22 Paragraph 1 Sentence 1 SGB II.
However, the benefit recipient cannot demand that these costs be covered because a claim for the financing of two apartments, of which only one is occupied, cannot in principle be based on Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
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Potsdam Social Court, judgment of 26 June 2012 – S 40 AS 1680/09
If, after a member moves out of the shared apartment of the household receiving benefits, the remaining members are required to pay the tenant compensation for use, this compensation is equivalent to the costs of accommodation.
2.11 – North Rhine-Westphalia State Social Court, decision of 20.12.2012 – L 7 AS 2193/12 B ER and – L 7 AS 2194/12 B
Suspensive effect of the action against the integration administrative act of the job center, because the integration agreement contains no provisions regarding the assumption of the costs for the applications.
This circumstance alone gives rise to considerable concerns regarding the legality of the integration administrative act (reference to the decision of the Lower Saxony-Bremen State Social Court of 04.04.2012, file number: L 15 AS 77/12 B ER).
If the efforts specified in the integration agreement require additional financial resources, for example for application documents, the financing of these resources must also be regulated in the integration agreement (Berlit in LPK-SGB II, 4th edition 2011, § 15, marginal note 29; Spellbrink in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 15, marginal note 25).
2.12 – North Rhine-Westphalia State Social Court, decision of 17 January 2013 – L 7 AS 2045/12 B –
If the integration agreement contains no provisions regarding the assumption of application costs, there are, for this reason alone, significant concerns about the legality of the integration administrative act.
If the efforts specified in the integration agreement require additional financial resources, such as for application documents, the integration agreement must also regulate their financing (decision of the adjudicating Senate of 20 December 2012, file no.: L 7 AS 2193/12 B ER; decision of the Lower Saxony-Bremen State Social Court of 4 April 2012, file no.: L 15 AS 77/12 B ER; Berlit in LPK-SGB II, 4th edition 2011, § 15, marginal note 29; Spellbrink in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 15, marginal note 25)
2.13 – North Rhine-Westphalia State Social Court, decision of 25 January 2013 – L 7 AS 1508/12 B –
Granting of legal aid, because it is disputed whether the reduction by operation of law pursuant to Section 31b Paragraph 1 of the German Social Code, Book II (SGB II) is to be understood in such a way that, for the granting of benefits relating to the reduction period, no revocation of the benefit award pursuant to Section 48 of the German Social Code, Book X (SGB X) is required (cf. on the state of opinion, Lauterbach in Gagel, SGB II/SGB III, Section 31b SGB II, marginal note 2).
Regarding the predecessor regulation, the Federal Social Court stated in its judgment of 17 December 2009 (B 4 AS 30/09 R), with reference to Section 40 Paragraph 1 of the German Social Code, Book II (SGB II), that the granting of unemployment benefit II (Alg II) is a permanent administrative act, the legal force of which can only be broken by a contrary revocation decision.
2.14 – North Rhine-Westphalia State Social Court, decision of 20 December 2012 – L 7 AS 1633/12 B ER and – L 7 AS 1634/12 B
With the move to the new apartment and the conclusion of the lease agreement, the legal interest in obtaining a prior assurance in preliminary legal protection proceedings ceased to exist (cf. North Rhine-Westphalia State Social Court, decision of 1 August 2011, L 19 AS 956/11 B ER and L 19 AS 957/11 B).
2.15 – North Rhine-Westphalia State Social Court, decision of 16.01.2013 – L 19 AS 2152/12 B
No assumption of costs for the purchase of a mobile lighting set pursuant to Section 16c Paragraph 1 SGB II nF if the benefit recipient has neither overcome nor reduced the need for assistance within a period of more than three years after commencing self-employment.
2.16 – North Rhine-Westphalia State Social Court, decision of 20.12.2012 – L 6 AS 1897/12 B ER –
Granting of ALG II within the framework of the balancing of consequences for a Polish citizen.
Donations made solely to bridge a period of hardship until the provision of requested benefits to secure subsistence are not to be considered as income (see LSG North Rhine-Westphalia, judgment of 22.04.2012 – L 7 AS 5268/09).
The applicant's entitlement to benefits to secure her standard needs arises from Article 4 in conjunction with Article 70(1) 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 (cf. Senate decision of 9 November 2012 – L 6 AS 1324/B ER).
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3. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – Social Court Landshut, Judgment of 11 July 2012 – S 11 AS 78/12
A provider of SGB II benefits has no obligation to provide benefits to the landlord of a benefit recipient (cf. LSG North Rhine-Westphalia, judgment of 11.11.2010, L 9 AS 480/10).
3.2 – Social Court Landshut, Judgment of 23 October 2012 – S 11 AS 178/11
1. Section 31 paragraph 1 sentence 1 no. 1c of the German Social Code, Book II (SGB II), in the version applicable until March 31, 2011, also applies to situations in which the basis is not an integration agreement, but an administrative act concerning integration. This follows from an analogy.
2. There are no constitutional limits regarding analogous application.
3. Legally binding integration administrative acts are generally not subject to incidental review for their legality within the framework of legal proceedings against the sanction.
4. The sanction provisions of Sections 31 et seq. of the German Social Code, Book II (SGB II) are constitutional.
3.3 – Social Court Berlin, Judgment of 14 December 2012 – S 82 AS 17717/11
Latvian citizens are not entitled to ALG II (unemployment benefit II).
The application of the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is not contrary to European law.
3.4 – Bremen Social Court, decision of 07.01.2013 – S 21 AS 2221/12 ER –
Suspensive effect against the sanction notice, because it is questionable to what extent the continuation of the employment relationship in full-time employment or with a higher monthly working time of 29 hours was reasonable for the applicant in the specific case.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – North Rhine-Westphalia State Social Court, Judgment of 10 October 2012 – L 12 SO 605/10
In specific individual cases, a disabled person is entitled to integration assistance pursuant to Section 54 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII) in the form of music therapy.
According to § 54 SGB XII, in principle any measure that is necessary and suitable to enable and facilitate school attendance for disabled persons within the framework of compulsory education can be eligible for funding (cf. BSG, judgment of 22.03.2012 – B 8 SO 30/10 R).
4.2 – North Rhine-Westphalia State Social Court, Judgment of 29 October 2012 – L 20 SO 63/09 –
1. Repayment installments for building loans and contributions to building savings contracts are not to be considered as costs of accommodation for self-occupied residential properties.
2. Housing benefit payments do not reduce the need for accommodation. Rather, they constitute normative income (solely) for the person to whom the housing benefit is paid.
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4.3 – North Rhine-Westphalia State Social Court, Judgment of December 20, 2012 – L 9 SO 607/10, appeal allowed:
Costs for security measures (night watch) are to be covered by the social welfare provider as part of integration assistance if they are necessarily related to other integration services.
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5. Decisions of the Social Courts on Social Assistance (SGB XII)
5.1 – Aachen Social Court, Judgment of 29 January 2013 – S 20 SO 130/12
The new regulations governing social assistance benefits under Book XII of the German Social Code (SGB XII) – specifically, the basic income support for those with reduced earning capacity – implemented by the legislature with effect from January 1, 2011, based on the ruling of the Federal Constitutional Court of February 9, 2010 (1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09), are not objectionable under constitutional law.
Note:
See also – Social Court Berlin, judgment of 04.12.2012 – S 51 SO 2013/11 and Higher Social Court of Lower Saxony-Bremen, decision of 24.10.2011 – L 8 SO 275/11 B ER
5.2 – Social Court Aachen, Judgment of 29 January 2013 – S 20 SO 75/12
The operator of a residential care facility can only claim payment of a care home fee from the social welfare provider, based on the assumption of debt within the framework of the social welfare triangular relationship, in the amount of the benefit granted to the social welfare recipient.
Note:
See also – BSG, judgment of 28.10.2008 – B 8 SO 22/07 R; LSG Rheinland-Pfalz, judgments of 25.11.2010 – L 1 SO 8/10 – and of 18.02.2011 – L 1 SO 33/09.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
