1. Decisions of the Federal Social Court of 16 April 2013 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 16.04.2013 – B 14 AS 71/12 R
If the wife and her husband, who is in need of care, have formed a household community during his stay in a residential care facility, the assessment of the need for assistance must be carried out according to the principles developed by the Federal Social Court (BSG) for such mixed household communities.
Contrary to the general rule established there, in the present specific situation the needs of the other member of the household – who is excluded from benefits under the SGB II – must exceptionally be determined according to the SGB XII, because basic income support for job seekers does not recognize assistance in institutions (according to § 35 SGB XII aF, from 1.1.2011: § 27b SGB XII) and therefore even a fictitious needs assessment according to the SGB II is not possible.
1.2 – BSG, Judgment of 16.04.2013 – B 14 AS 81/12 R
No reduction in Hartz IV benefits if child benefit has been demonstrably forwarded
The mother does not form a household with her severely disabled adult son, who usually resides in a residential facility for people with disabilities.
The fact that the son stays with his mother on weekends or during holidays is not grounds for considering the child benefit, which is demonstrably passed on to the son, as income of the mother.
Note:
Child benefit can only be considered forwarded if this occurs promptly within one month of payment or transfer of the child benefit (see BSG, judgment of December 11, 2007 – B 8/9b SO 23/06 R).
1.3 – BSG, Judgment of 16.04.2013 – B 14 AS 28/12 R
Changes in the number of residents justify the assumption of even potentially abstractly unreasonable costs for a transitional period of up to six months.
Note:
Likewise – Federal Social Court (BSG), judgment of 19 October 2010 – B 14 AS 50/10 R
If accommodation is used by only one partner of an existing household due to an absence from the local area, there is no room for dividing the accommodation costs proportionally per person, at least if the absence of the other partner is limited to less than six months in advance.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Saxony-Anhalt, decision of 11 March 2013 – L 5 AS 28/13 B
Granting of legal aid, because everything is open – consideration of income or assets for bridging allowance paid after release from prison
It has not been clarified by higher courts what consequences the retroactive effect of the benefit application to the first of the month of application, now regulated in § 37 para. 2 SGB II, has with regard to the distinction between assets and income in cases where a statutory exclusion from benefits pursuant to § 7 para. 4 or 5 SGB II only ceases during the course of the month.
In principle, the new regulation regarding the retroactive effect of the application should synchronize the calculation of needs with the income to be taken into account in the month of need, so that the need is calculated for the entire month of application and the income to be taken into account in that month is credited against it.
However, if an entitlement to benefits exists only for part of the month due to the application of a reason for exclusion, entitlement to benefits can only arise once the reason for exclusion has ceased to exist, despite the retroactive effect of the application.
The crucial point is how one interprets the term "application." If it is simply understood as a deadline, then the procedure should be as the Job Center did in its decisions.
If, however, the term is understood to mean the beginning of the legally permissible benefit period (i.e., the point in time from which the application is to or can become effective), then the decisive factor is the point in time at which benefits are to commence as requested. This latter view necessitates, in cases where a reason for exclusion from benefits ceases to exist during the month of application, a differentiation between income and assets based on the point in time at which entitlement to benefits begins or the reason for exclusion ceases to exist.
2.2 – Saxon State Social Court, Judgment of 28 February 2013 – L 7 AS 745/11
Hartz IV: When are third parties required to provide information about their income and assets?
Press release from the Saxon State Social Court (LSG) dated April 16, 2013, available here: www.justiz.sachsen.de
. Note:
The full text of the judgment has already been published in the Tacheles legal news ticker, week 14/2013, under point 2.4:
www.tacheles-sozialhilfe.de
2.3 – North Rhine-Westphalia State Social Court, decision of 16 April 2013 – L 2 AS 2047/12 B legally binding
. The amount of the reminder fee is irrelevant for assessing the necessity of consulting a lawyer (Federal Social Court, judgment of 2 November 2012 – B 4 AS 97/11 R para. 17).
Legal aid is granted because, as in this case, if a plaintiff is faced with legally knowledgeable and experienced representatives of an authority in the objection proceedings, and there is a clear imbalance in the knowledge and skills of the parties involved, then the appointment of a lawyer is regularly made (Federal Social Court judgment of 02.11.2012 – B 4 AS 97/11 R para. 19).
As a layperson in legal matters, he was unable to verify and assess, without assistance, that the disputed reimbursement claim was not due in light of the objection lodged against it, taking into account the differentiated regulation of Section 39 No. 1 SGB II, contrary to the assertion of the Jobcenter.
2.4 – North Rhine-Westphalia State Social Court, Judgment of 21 March 2013 – L 7 AS 1911/12, Appeal on points of law is granted.
Even a need of only 27.20 euros for travel expenses to exercise visitation rights is to be granted by the Jobcenter as an unavoidable need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), and is not to be saved by the benefit recipient from the standard benefit.
There is no so-called de minimis threshold, according to which the beneficiary can always be referred to priority savings options without further examination if the atypical need amounts to "only" up to 10% of the standard benefit.
A different assessment regarding the amount of minor claims within the meaning of Section 73 of the German Social Code, Book XII (SGB XII) and Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), is not justified, even assuming the permissibility of de minimis thresholds under Section 21 of the SGB II.
(sozialgerichtsbarkeit.de
2.5 – North Rhine-Westphalia State Social Court, decision of 12 April 2013 – L 12 AS 374/13 B ER legally
binding. The instruction on legal consequences, and thus the sanction regulations, are not unconstitutional.
The provisions of Sections 31 to 31b of the German Social Code, Book II (SGB II) are not unconstitutional (see decision of December 21, 2012, – L 12 AS 2232/12 B – ; decision of February 6, 2013 – L 12 AS 2355/12 B ER).
There is no violation of the fundamental right to a dignified minimum standard of living. The legislature did not mandate the reduction or elimination of benefits as the only option. Rather, the law provides for modifying regulations that safeguard the applicant's existence (e.g., Section 31a Paragraph 3 of the German Social Code, Book II). These regulations ensure the minimum standard of living.
Note:
North Rhine-Westphalia State Social Court, decision of 21 December 2012 – L 12 AS 2232/12 B
The provisions of Section 31a Paragraph 2 Sentence 1, 31 SGB II cannot be seen as violating Article 3 of the Basic Law or as age discrimination.
Section 31a paragraph 2 of the German Social Code, Book II (SGB II) is not unconstitutional (see also Herold Tews in Löns/Herold Tews, SGB II, 3rd edition 2011, Section 31a marginal note 13).
2.6 – Hamburg State Social Court, Judgment of 27 March 2013 – L 4 AS 343/10
The cancellation and reimbursement order is unlawful and must be revoked, even if the benefit recipient was not entitled to benefits under the German Social Code, Book II (SGB II) for the period of serving the substitute custodial sentence (see Federal Social Court (BSG), judgment of 24 February 2011, B 14 AS 81/09 R), but the person concerned cannot be accused of having intentionally or grossly negligently failed to report the change (§ 48 para. 1 no. 2 SGB X).
The decisive factor is not solely whether Section 7 Paragraph 4 of the German Social Code, Book II (SGB II) precluded the benefit recipient's claim after their incarceration, but also whether the benefit recipient could have recognized the loss of eligibility requirements under Section 7 Paragraph 4 of the SGB II (see also No. 4).
The Senate is of the opinion that this must be denied, since it was only a short substitute custodial sentence, ongoing living expenses continued to accrue, and the benefit recipient, as a layperson, was unable to make a clearly accurate assessment of the legal situation (see also the Senate's decision of February 12, 2013, L 4 AS 373/12 B PKH). Furthermore, the effects of a short substitute custodial sentence on the entitlement to benefits were controversial in case law and legal literature at the time and were also the subject of pending appeals.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Bremen Social Court, decision of 27 March 2013 – S 27 AS 928/12
Under the mandatory provision of Section 22 Paragraph 8 Sentence 2 of the German Social Code, Book II (SGB II), the basic income support provider is obligated to grant a loan to repay a construction financing loan for an owner-occupied home if this is necessary to prevent homelessness.
Note:
Similarly – Lower Saxony-Bremen State Social Court, decision of 10 July 2012 – L 15 AS 92/12 B ER
3.2 – Bremen Social Court, Judgment of 27 March 2013 – S 21 AS 1135/12
1. The exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) violates Article 4 of Regulation (EC) No 883/2004 and is therefore contrary to European law.
2. Benefits to secure subsistence are not social assistance benefits within the meaning of Article 24(2) of Directive 2004/38/EC (cf. Bavarian Higher Social Court, decision of 22 December 2010, file no. L 16 AS 767/10 B ER; but see Baden-Württemberg Higher Social Court, decision of 15 April 2010, file no. L 13 AS 1124/10 ER-B).
Note:
See Prof. Dr. Thorsten Kingreen for more information.
Nationality as a criterion for differentiation in social welfare law.
On the compatibility of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) with European Union law and German constitutional law.
According to the jurisprudence of the Federal Constitutional Court and the European Court of Justice, nationality has largely ceased to be a permissible criterion for differentiation in the receipt of social benefits. Therefore, Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) is also unconstitutional and contrary to EU law.
Source: www.diesocialgerichtsbaren.de
3.3 – Neubrandenburg Social Court, decision of 18 April 2013 – S 15 AS 466/13 ER
Unemployment benefit II (ALG II) also applies to EU citizens as part of the balancing of interests
At least those citizens of other EU states that are member states of the European Social Security Agreement (ESA) are entitled to benefits directly from overriding international law, since the German government's declared subsequent reservation against the ESA is ineffective.
Furthermore, entitlement likely already follows from EC Regulation 883/2004, which prohibits unequal treatment of EU citizens compared to Germans, even with regard to the receipt of social benefits.
Source: Attorney Alexander Schmidt, Neubrandenburg
4. Decisions on employment promotion law (SGB III)
4.1 – Baden-Württemberg State Social Court, Judgment of 22 March 2013 – L 8 AL 1225/11, Appeal on points of law is granted
The service instruction issued by the Federal Employment Agency, which mandates a fictitious assessment, contradicts both previous and current EC law.
The unemployment benefit entitlement of a former cross-border worker who, prior to unemployment, was again employed and subject to compulsory insurance in his country of residence, Germany, is not to be calculated fictitiously according to Section 152 of the German Social Code, Book III (SGB III), but rather by analogy with Section 151 SGB III, pursuant to Article 62(1) of EU Regulation No. 883/2004, which is identical in wording to Article 68(1), first sentence, of EC Regulation 1408/71 (contra: Higher Social Court of Baden-Württemberg, judgment of 19 October 2011 – L 3 AL 5476/10 – on EC Regulation 1408/71).
Note:
ECJ judgment of 11 April 2013, Case C-443/11
The ECJ has ruled that a cross-border worker who has become unemployed can only receive unemployment benefits in his or her member state of residence, even if the worker has maintained particularly close ties to the state of his or her last employment.
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – North Rhine-Westphalia State Social Court, judgment of 20 June 2011 – L 20 SO 76/08 legally binding
The prisoner is not entitled to have his rent covered for maintaining an existing apartment at the beginning of his imprisonment as a benefit to overcome special social difficulties under Sections 67 et seq. of the German Social Code, Book XII (SGB XII), because the start of his imprisonment was already well over a year prior. At the same time, the end of his imprisonment was not realistically foreseeable.
Note:
Duisburg Social Court, judgment of 18 February 2013 – S 16 SO 204/11
A prisoner is not entitled to have his rent covered as a benefit to overcome special social difficulties under Sections 67ff. of the German Social Code, Book XII (SGB XII), if the accommodation lasted almost a year and thus exceeded the reasonable limit of 6 months by almost double.
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – Marburg Social Court, decision of 18 February 2013 – S 9 SO 84/11 and – S 9 SO 85/11
1. With regard to the authority, knowledge of the need as such is sufficient; the knowledge need not expressly relate to the amount of benefits (cf. BSG, judgment of 15.11.2011 - B 8 SO 18/10 R, para. 21).
2. The crediting of hospital meals is definitely excluded under SGB XII, as well as under SGB II.
3. Recipients of benefits under Book XII of the German Social Code (SGB XII) must not, in principle, be treated less favorably than recipients of benefits under Book II of the German Social Code (SGB II) with regard to the crediting of income, unless structural differences between the two laws justify different treatment (see Federal Social Court (BSG), judgment of 23 March 2010 – B 8 SO 17/09 R).
Source: Plaintiff
6.2 – Social Court Stade, Judgment of 20 March 2013 – S 19 SO 58/11
1. The amount for clothing according to § 27 b para. 2 sentence 1 SGB XII (clothing allowance) is calculated according to the share for clothing in the relevant standard benefit level.
2. A benefit recipient born in 1995 receives a total of 468.36 euros for 2011.
Source: Attorney Jens Hake, Stade
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
