1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Bavarian State Social Court, decision of 21.12.2012 – L 11 AS 850/12 B ER
On the assumption of rent arrears that have arisen due to a complete cessation of benefits in view of a sanction, within the framework of preliminary legal protection.
1.2 – Bavarian State Social Court, Judgment of 05.12.2012 – L 16 AS 483/12
1. A full diet is not a costly diet that would trigger an additional need according to § 21 para. 5 SGB II.
2. A whole diet refers to the usual diet. A whole diet is a complete and balanced diet that contains all essential nutrients without restriction and meets the body's calorie needs.
3. A war victim's pension received from Great Britain is comparable to a basic pension under the Federal War Victims' Relief Act.
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1.3 – Bavarian State Social Court, Judgment of 05.12.2012 – L 16 AS 927/11
1. An integration agreement is a contract governed by subordination law pursuant to Section 53 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X).
2. Judicial review of an integration agreement is based on the regulations pursuant to Sections 53 et seq. of the German Social Code, Book X (SGB X).
3. "As a public-law contract, the integration agreement is subject to a review for nullity, but not to a review for illegality as is the case with administrative acts."
1.4 – State Social Court of Saxony-Anhalt, decision of 14 January 2013 – L 5 AS 795/12 B ER
No entitlement to financing for the acquisition of a driver's license pursuant to Section 16 Paragraph 1 of the German Social Code, Book II (SGB II) in conjunction with Section 44 Paragraph 1 of the German Social Code, Book III (SGB III).
Because the employment relationship no longer exists, and given the further circumstance that the job center was able to offer the applicant two job placement suggestions for employment in the local area, the applicant's job market prospects do not appear so poor that the requested funding for obtaining a driver's license is urgently needed.
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Note:
LSG NSB, decision of the 15th Senate of 13 October 2011, file number L 15 AS 317/11 B
If the decision as to whether and to what extent benefits are provided is at the discretion of the basic income support provider, an obligation to grant provisional benefits in a certain amount in preliminary legal protection proceedings is generally only conceivable if there is a reduction of discretion to zero.
Such a scenario applies to applications for funding from the placement budget pursuant to Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) in conjunction with Section 45 of the German Social Code, Book III (SGB III) (old version) for the acquisition of a driver's license, if an employer has offered employment that is contingent upon possession of a driver's license, and the indigent applicant cannot cover the costs of obtaining the license, even partially, from their own resources, so that the purpose pursued with the funding (obtaining employment) can only be achieved by covering the full costs.
1.5 – State Social Court of Saxony-Anhalt, Judgment of 04.10.2012 – L 5 AS 354/09
The appeal is inadmissible because, following the expiration of the integration agreement's validity period, the contested decision has become moot and therefore no longer needs to be overturned. Consequently, the legal interest in continuing the appeal proceedings has ceased to exist.
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Note:
Similarly – Senate decision of 24 November 2010, file no.: L 5 B 397/07 AS, para. 18; North Rhine-Westphalia Higher Social Court, decision of 14 August 2008, file no.: L 19 B 116/08 AS, para. 10.
1.6 – Hamburg State Social Court, Judgment of 21 November 2012 – L 4 AS 6/11
No coverage of costs for the provision of various visual aids and care products for contact lenses in accordance with Section 21 Paragraph 4 and Paragraph 6 of the German Social Code, Book II (SGB II).
Note:
Rhineland-Palatinate Higher Social Court, decision of 16 December 2008 – L 5 B 422/08 AS
The costs of regular visual aids that are not specifically needed for carrying out gainful employment are not to be covered as part of rehabilitation.
1.7 – Rhineland-Palatinate State Social Court, Judgment of 19 December 2012 – L 6 AS 611/11
Annual calculation of income from self-employment under the German Social Code, Book II (SGB II)
1. An annual calculation of income from self-employment pursuant to Section 3 Paragraph 5 of the German Social Code, Book II (SGB II) can be carried out not only for seasonal businesses, but also for businesses where the nature of the activity necessitates an annual assessment. This may be the case, considering all the circumstances of the individual case, when income is only received in certain months within a year.
2. Value added tax paid to the tax office is considered an expense necessary for generating income (§ 11 para. 2 sentence 1 no. 5 SGB II a. F.), but is not considered a tax paid on income (§ 11 para. 2 sentence 1 no. 1 SGB II a. F.) (cf. Söhngen in jurisPK-SGB II, 3rd ed. 2012, § 11b marginal note 16).
1.8 – Berlin-Brandenburg State Social Court, decision of 20 September 2012 – L 5 AS 2049/12 B ER
Swiss citizens are not entitled to ALG II (unemployment benefit 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 compatible with the Agreement between the European Community and its Member States on the one hand and the Swiss Confederation on the other hand on the free movement of persons of 21 June 1999 (Federal Law Gazette 2001 II p. 810).
1.9 – Berlin-Brandenburg State Social Court, Judgment of 26 October 2012 – L 5 AS 949/11
If a general review request is submitted – without specifying the decisions to be reviewed or the legal objections raised – the authority may reject it without examining the merits. In this respect, judicial review is limited to the question of whether the authority was entitled to reject the request without examining the merits. The decisive factor is the point in time at which the objection decision is made.
Note:
Similarly – Berlin-Brandenburg State Social Court, judgment of September 29, 2011, L 29 AS 728/11
1.10 – Berlin-Brandenburg State Social Court, decision of 09.11.2012 – L 29 AS 1782/12 B ER
Spanish national has no entitlement to ALG II
Section 7 paragraph 1 sentence 2 no. 2 of the German Social Code, Book II (SGB II) is – not – contrary to European law or international law
Note:
See also – LSG Berlin-Brandenburg, decision of March 5, 2012, L 29 AS 414/12 B ER, decisions of June 12, 2012, L 29 AS 1044/12 B ER, L 29 AS 914/12 B ER, decision of June 22, 2012, L 29 AS 1252/12 B ER, decision of July 5, 2012, L 29 AS 1244/12 B ER, decision of July 25, 2012, L 1504/12 B ER
Note:
For a different view, see the decisions of the Berlin-Brandenburg Higher Social Court (LSG Berlin-Brandenburg) of April 27, 2012, L 14 AS 763/12 B ER; the decisions of June 29, 2012, L 14 AS 1460/12 B ER; the decisions of May 23, 2012, L 19 AS 1106/12 B ER; the decisions of May 23, 2012, L 25 AS 837/12 B ER; and the decision of August 14, 2012, L 16 AS 568/12 B ER. Other Higher Social Courts hold a different view; see, for example, the Bavarian Higher Social Court (Bayerisches LSG) of August 14, 2012, L 16 AS 568/12 B ER; and the Rhineland-Palatinate Higher Social Court (LSG Rheinland-Pfalz) of August 21, 2012, L 3 AS 250/12 B ER.
1.11 – Berlin-Brandenburg State Social Court, Judgment of 07.11.2012 – L 20 AS 861/12
The law provides no basis for considering the circumstances of the credit's creation when calculating the reduction of benefits due to incoming credits from operating cost statements.
Note:
Federal Social Court (BSG) judgment of March 23, 2012, B 4 AS 139/11 R
When applying Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II aF), it is irrelevant who made the advance payments during the period in which the credit balance arose, whether these payments were made solely by the person in need of assistance, or whether there was any need for assistance at all.
1.12 – Baden-Württemberg State Social Court, Judgment of 12 December 2012 – L 3 AS 4252/11
1. Even with the amendment of Sections 19 to 22 of the German Social Code, Book II (SGB II) by the Act on the Determination of Standard Needs and the Amendment of the Second and Twelfth Books of the German Social Code of 24 March 2011 (Federal Law Gazette I, p. 453), the entitlement to the standard need is a separate entitlement from the other benefits included in unemployment benefit II.
2. The standard allowance of EUR 364.00 for a single person applicable for the period from 01.01. to 30.04.2011 pursuant to Section 20 Paragraph 2 Sentence 1 No. 1 SGB II cannot be considered evidently insufficient to secure a dignified minimum standard of living.
Note:
Different view on point 2: Referral decision of the Social Court of Berlin of 25 April 2012 – S 55 AS 9238/12
1.13 – Baden-Württemberg State Social Court, Judgment of 12 December 2012 – L 3 AS 2192/12
1. On the admissibility of an action against an integration decision (EinglB) pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II), when the validity period of the contested integration decision has expired. If the integration decision forms the basis of a sanction decision that is not yet legally binding, the action remains admissible.
2. Four applications for jobs subject to social security contributions within two months, i.e., two unsolicited applications per month, are perfectly reasonable for a recipient of benefits under the German Social Code, Book II (SGB II), even if they are employed and only receive supplementary benefits.
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1.14 – North Rhine-Westphalia State Social Court, decision of 28 January 2013 – L 7 AS 429/12 B
Granting of legal aid for standard-rate lawsuits.
1.15 – North Rhine-Westphalia State Social Court, decision of 28.01.2013 – L 12 AS 1836/12 NZB
No assumption of passport procurement costs as a grant or as a loan.
1.16 – North Rhine-Westphalia State Social Court, decision of 18 January 2013 – L 6 AS 1980/12 B
Section 40 Paragraph 2 No. 1 SGB II in conjunction with Section 328 Paragraph 1 Sentence 1 No. 3 SGB III does not only apply to employees among those entitled to benefits under SGB II.
The corresponding application mediated by Section 40 of the German Social Code, Book II (SGB II), requires, in view of the identical interests under SGB II and SGB III between benefit recipients on the one hand and benefit providers on the other, that all beneficiaries of basic income support for jobseekers be included in principle (similarly, partly without justification, Eicher in Eicher/Spellbrink SGB II 2nd ed. 2008 § 40 para. 68 f; Leopold info also 2008, 104 ff. (105), with further references; Wolff-Dellen in Löns/Herold-Tews 3rd ed. § 40 para. 5).
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1.17 – North Rhine-Westphalia State Social Court, decision of January 22, 2013 – L 6 AS 1033/12 B:
Granting of legal aid to a Turkish national, because the reservation declared as a preliminary injunction regarding the scope of application of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is disputed.
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Note:
Negative rulings: Berlin-Brandenburg Higher Social Court, decision of August 15, 2012 – L 19 AS 1851/12 B ER, juris para. 6 ff; Bavarian Higher Social Court, decision of August 14, 2012 – L 16 AS 568/12 B ER – juris para. 21; Rhineland-Palatinate Higher Social Court, decision of August 21, 2012 – L 3 AS 250/12 B; Berlin Social Court, decision of April 25, 2012 – S 55 AS 9238/12
Affirmative: LSG Berlin-Brandenburg decision of 02.08.2012 – L 5 AS 1297/12 B ER – juris para. 11ff; LSG Lower Saxony-Bremen decision of 20.07.2012 – L 9 AS 563/12 B ER – juris para. 45ff; see also LSG North Rhine-Westphalia decision of 04.07.2012 – L 19 AS 763/12 B ER – juris para. 33 and LSG North Rhine-Westphalia decision of 06.11.2012 – L 6 SF 348/12 ER).
1.18 – North Rhine-Westphalia State Social Court, decision of 30.01.2013 – L 7 AS 8/13 B ER and – L 7 AS 9/13 B legally binding
Assumption of electricity debts within the framework of the balancing of consequences, because without the requested benefits the applicant faces existential disadvantages which she cannot avert on her own.
The disbursement of the loan was contingent upon a declaration of commitment from the other members of the household to joint and several repayment, in order to ensure that the loan, granted to the entire household, could be reclaimed in its entirety – and not just proportionally. The direct payment to the energy supplier is based on Section 22, Paragraph 7, Sentences 2 and 3 of the German Social Code, Book II (SGB II).
1.19 – North Rhine-Westphalia State Social Court, decision of 31.01.2013 – L 2 AS 2457/12 B ER and – L 2 AS 2458/12 B ER
Italian nationals are entitled to ALG II within the framework of the balancing of interests.
Because there are considerable doubts as to whether the exclusion of benefits in the form chosen by the federal legislature is compatible with European Union law
Note:
Similarly – from the extensive case law of the higher courts, e.g., LSG NRW decision of 09.11.2012 – L 6 AS 1324/12 B ER juris para. 21; LSG Berlin-Brandenburg decision of 29.06.2012 – L 14 AS 1460/12 B ER juris para. 4 and decision of 23.05.2012 – L 25 AS 837/12 B ER juris para. 10; LSG Hessen decision of 14.07.2011 – L 7 AS 107/11 B ER juris para. 18 ff.
Note:
A different view is held by the Berlin-Brandenburg Higher Social Court (LSG Berlin-Brandenburg) in its decision of 21 June 2012 – L 20 AS 1322/12 B ER, juris para. 36; and by the Lower Saxony-Bremen Higher Social Court (LSG Niedersachsen-Bremen) in its decision of 23 May 2012 – L 9 AS 347/12 B ER, juris para. 32.
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Berlin Social Court, Judgment of December 19, 2012 – S 55 AS 18011/12, pending before the Federal Social Court under file number: B 4 AS 9/13 R
1. An exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) does not apply to those entitled under Articles 2, 3, 4, and 70 of Regulation (EC) No 883/2004, because the principle of equal treatment under Article 4 of Regulation (EC) No 883/2004 is directly legally effective due to Section 30 Paragraph 2 of the German Social Code, Book I (SGB I). Claims to unemployment benefit II under Sections 19 Paragraph 1 Sentences 1 and 3, 20 Paragraphs 1, 2 and 5, 7 Paragraph 1 Sentence 1, and 22 Paragraph 1 of the German Social Code, Book II (SGB II) are covered as special non-contributory cash benefits by Article 70 of Regulation (EC) No 883/2004.
2. The personal scope of application of EU Regulation 883/2004 is always open to Union citizens by virtue of Articles 2 and 3 thereof, because they are entitled to the placement services of the Federal Employment Agency as jobseekers. EU Regulation 883/2004 also applies to Union citizens who receive child benefit (family benefit within the meaning of Article 3(1)(j) of EU Regulation 883/2004).
3. The reservation regarding the applicability of the EU Agreement on the European Union (EuFürsAbk), declared by the Federal Government pursuant to Article 16(b) of the EuFürsAbk and communicated to the Federal Employment Agency by its business instruction SGB II No. 8 of February 23, 2012, lacks sufficient authorization by parliamentary law. The EuFürsAbk therefore remains applicable as a special provision prior to Section 7(1), sentence 2, Nos. 1 and 2 of the
German Social Code, Book II (SGB II). (sozialgerichtsbarkeit.de
2.2 – Chemnitz Social Court, Judgment of 17 October 2012 – S 14 AS 640/12
An objection submitted via simple email does not comply with the formal requirements of Section 84 Paragraph 1 Sentence 1 of the Social Court Act (SGG).
(sozialgerichtsbarkeit.de
Note:
Likewise – Decision of the Hessian State Social Court of 11 July 2007, file number: L 9 AS 161/07 ER
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Hamburg State Social Court, Judgment of 21 January 2013 – L 4 SO 3/12
A claim for funds to renovate the former apartment in order to maintain a suitable living environment has lapsed as a result of the abandonment of the accommodation by way of forced eviction.
A claim for reimbursement of the costs of a move-out renovation may well be considered according to the principles of the judgment of the Federal Social Court of 24.11.2011, B 14 AS 15/11 R.
3.2 – Berlin-Brandenburg State Social Court, Decision of 29 January 2013 – L 23 SO 319/12 B ER
No assumption of outstanding rent expenses for the costs of accommodation in a nursing home pursuant to Section 36 Paragraph 1 of the German Social Code, Book XII (SGB XII), because a threat to the accommodation cannot be assumed simply by issuing a notice of termination if there are doubts about its seriousness and, furthermore, accommodation in another nursing home exists.
Section 36 Paragraph 1 of the German Social Code, Book XII (SGB XII) makes the discretion granted to the authority dependent on an actual risk situation and not merely on the fact that the lease has been terminated or that termination is possible. (
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3.3 – Berlin-Brandenburg Higher Social Court, Decision of November 7, 2012 – L 23 SO 239/12 B ER.
According to Section 929 Paragraph 2 of the Code of Civil Procedure (ZPO), enforcement of an arrest warrant is inadmissible if one month has elapsed since the date of service. Pursuant to Section 86b Paragraph 2 Sentence 4 of the Social Courts Act (SGG), this provision is applicable mutatis mutandis to preliminary injunctions under Section 86b SGG (Keller in Meyer-Ladewig/Keller/Leitherer, SGG, 10th edition 2012, Section 86b, marginal note 46 with further references; Berlin-Brandenburg Higher Social Court, decision of April 15, 2011, L 14 AS 218/11 B ER).
Note:
Similarly regarding the German Social Code, Book II (SGB II) – Rhineland-Palatinate Higher Social Court (LSG Rheinland-Pfalz) judgment of January 26, 2011, L 6 AS 616/10 B ER
4. Decisions on employment promotion law (SGB III)
4.1 – Social Court Karlsruhe, Judgment of 17 January 2013 – S 16 AL 949/12
The prospect of a start-up grant via email, which does not meet the requirements of a commitment but nevertheless creates a legitimate expectation on the part of the applicant regarding the funding conditions, can reduce the discretionary power to zero.
If the legal requirements change, the employment agency is obligated to inform the applicant so that they can adjust their behavior accordingly and take advantage of permissible options (here: amendment to the law effective January 1, 2012).
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5. Federal Fiscal Court (BFH) judgment of 22 November 2012, III R 24/11
If a social welfare agency is not entitled to reimbursement of child benefit payments made under Book II of the German Social Code (SGB II) to the child of a person entitled to child benefit, because the child lives in their own household and the child benefit was neither diverted nor forwarded to the child, a claim for reimbursement nevertheless exists if the parent entitled to child benefit also receives social benefits under SGB II.
www.bundesfinanzhof.de
6. Prof. Dr. Helga Spindler: Contributions in: Berlit/Conradis/Sartorius: Existenzsicherungsrecht, Handbuch, 2nd ed. Nomos, 2013
Contributions in: Berlit/Conradis/Sartorius: Existenzsicherungsrecht, Handbuch, 2nd ed. Nomos, 2013:
Chapter 6: The Activating Welfare State and its Relationship to Livelihood Security, pp. 72-82;
Chapter 17: Counseling, Support and Personal Assistance, pp. 257-268;
Chapter 30: Municipal Integration Services, pp. 658-667
More information: www.nomos-shop.de
7. RiSG Berlin Udo Geiger – Accommodation and heating costs according to the German Social Code, Book II (SGB II) – 2nd edition, as of January 1, 2013 – TuWas Unemployment Project (ed.)
More information: fhverlag.de
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
