1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Berlin-Brandenburg State Social Court, Judgment of April 25, 2013 – L 36 AS 2095/12 NK, the appeal is granted
. Berlin Housing Expenses Ordinance (WAV) is invalid.
www.lifepr.de
Note:
Similarly – Social Court Berlin, judgment of 22.02.2013 – S 37 AS 30006/12
1.2 – Bavarian State Social Court, decision of 19 March 2013 – L 16 AS 61/13 B ER
A ground for an injunction – i.e., urgency – exists even before the landlord files an eviction lawsuit.
It is generally unreasonable to allow a civil law ground for termination to arise.
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Dissenting opinion: Higher Social Court of North Rhine-Westphalia, decision of 17 January 2013 – L 19 AS 2449/12 B ER
According to established case law, the substantiation of grounds for an order granting benefits for accommodation and heating under Section 22 of the German Social Code, Book II (SGB II) does not merely require the risk of incurring debt.
Rather, what is required is an acute threat to the accommodation, which can be assumed at the earliest upon service of an eviction notice.
1.3 – Bavarian State Social Court, Judgment of 27.03.2013 – L 11 AS 810/11, Appeal is admitted.
Multiple consideration of the basic allowance of 100 euros within one month and a deviation from the accrual principle are not required in the case of two wage payments received within one calendar month.
The basic allowance according to § 11 para. 2 sentence SGB II aF (now § 11b para. 2 sentence 2 SGB II) is to be regarded as a monthly expense which is to be deducted from the total income (from employment) that flows in the month for which the expense is to be taken into account, regardless of which sources of income the actual inflow comes from and under which actual or legal conditions this inflow of income came about.
Note:
A different view is held by: LSG NRW, North Rhine-Westphalia, judgment of 18.12.2012 – L 7 AS 652/12, appeal pending before the BSG under file number B 14 AS 13/13 R; SG Berlin, judgment of 18.01.2012, file number: S 55 AS 30011/10).
If two monthly wages from the same employment relationship are received within one calendar month, the tax-free allowances must be deducted for each monthly wage.
1.4 – North Rhine-Westphalia State Social Court, decision of 19.04.2013 – L 2 AS 99/13 B legally binding.
Taking into account the newly added § 10 para. 5 BEEG on 01.01.2011, parental allowance is to be fully credited against SGB II benefits.
A different rule applies only if income from employment was earned before the child's birth. Section 10 Paragraph 5 of the Federal Parental Allowance and Parental Leave Act (BEEG) is also constitutional (North Rhine-Westphalia State Social Court, decision of April 18, 2012 – L 19 AS 2012/11).
Taking into account the wording, legislative materials and the principles developed by the Federal Constitutional Court, it can be assumed that the constitutionality of Section 10 Paragraph 5 BEEG has been sufficiently clarified
Note:
See also – North Rhine-Westphalia State Social Court, decision of 29 November 2012 – L 19 AS 1283/12 B; decision of 6 January 2012 – L 7 AS 1107/11 B; decision of 4 January 2012 – L 12 AS 2089/11 B; Hesse State Social Court, decision of 1 February 2013 – L 6 AS 817/12 B; Berlin-Brandenburg State Social Court, decision of 22 October 2012 – L 14 AS 1607/12 NZB).
1.5 – Rhineland-Palatinate State Social Court, Judgment of 12 March 2013 – L 6 AS 623/11
The consideration of parental allowance as income reducing benefits for job seekers since 01.1.2011 is lawful and not objectionable under constitutional law.
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See also: Hessian State Social Court, decision of 01.02.2013 – L 6 AS 817/12 B
The legal question of whether the crediting of parental allowance received against benefits under the German Social Code, Book II (SGB II) pursuant to Section 11 Paragraph 1 Sentence 1 SGB II in the version applicable here from January 1, 2011, is constitutional, appears, in view of the jurisprudence of the Federal Constitutional Court, to no longer require clarification.
1.6 – Lower Saxony-Bremen State Social Court, decision of 22.03.2013 – L 11 AS 949/10 B
The granting of legal aid is not precluded by the fact that the legal action only has a prospect of success with regard to small amounts in the “cent range”.
In particular, legal disputes concerning small amounts are not considered frivolous (solely) because of their low value in dispute. Nor does the granting of legal aid fail solely due to the low value in dispute, which is in the single-euro range, and thus preclude the appointment of a lawyer under Section 121 Paragraph 2 of the German Code of Civil Procedure. A different assessment would contradict the requirements of the Federal Constitutional Court regarding the principle of equality before the law within the meaning of Article 3 Paragraph 1 in conjunction with Article 20 Paragraph 3 of the German Basic Law (see Federal Constitutional Court, Decision of March 24, 2011 – 1 BvR 1737/10)
Finally, it is inadmissible to reduce the question of whether legal representation appears necessary to an exclusive assessment of the relationship between the amount in dispute and the risk of costs. Rather, the decisive factor is whether a person of means, in the position of the person without means, would reasonably have retained a lawyer to represent their interests. This can regularly be assumed to be the case if there is a clear imbalance in the knowledge and abilities of the parties to the proceedings.
www.rechtsprechung.niedersachsen.de
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The same result was reached by the Berlin-Brandenburg State Social Court in its decision of September 7, 2012 – L 18 AS 1832/12 B PKH
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Gelsenkirchen Social Court, Judgment of 11 March 2013 – S 36 AS 1433/12, Appeal allowed
Spanish nationals are not entitled to ALG 2 (unemployment benefit II).
The exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is compatible with European Community law.
The exclusion from benefits declared on the basis of Directive 2004/38/EC pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), does not violate the principle of equal treatment under Article 4 of Regulation (EC) No 883/2004.
The EFA is not applicable – there are no concerns regarding the validity of this reservation.
sozialgerichtsbarkeit.de
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See also: Berlin-Brandenburg State Social Court, decision of November 9, 2012 – L 29 AS 1782/12 B ER
Spanish nationals are not entitled to ALG II (unemployment benefit II)
Note:
A different view is held by the Berlin-Brandenburg State Social Court, decision of 15 August 2012, - L 19 AS 1851/12 B ER –
A Spanish national is entitled to ALG II (unemployment benefit II).
2.2 – SG Berlin, Judgment of 05.04.2013 – S 37 AS 13126/12
Benefit recipients are entitled to additional needs allowances for nutrition in accordance with Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), in the case of lactose intolerance, amounting to 13 EUR per month.
The expert opinion should be given preference over the mere recommendations of the DV, especially since it specifically addresses the additional costs associated with lactose intolerance.
Full text of the decision: www.harald-thome.de (pdf)
For the expert report: www.harald-thome.de (pdf)
Note:
Similar results were reached in the judgments of the Dresden Social Court of 18 September 2012, – S 38 AS 5649/09 and – S 38 AS 17/11.
The benefit recipient is entitled to additional nutritional needs due to lactose intolerance amounting to EUR 1.00/day – EUR 30.00 per month.
2.3 – Social Court Mainz, Judgment of 11 April 2013 – S 10 AS 1221/11
It may be reasonable for a recipient of unemployment benefit II to travel at night from their workplace to their home through an industrial area in order to take up employment.
2.4 – Bremen Social Court, Judgment of 11 April 2013 – S 4 KR 27/11
Former freelancers: Health insurance funds can reject Hartz IV recipients – No statutory health insurance for formerly self-employed individuals
Section 5 paragraph 5a of the German Social Code, Book V (SGB V) also applies to formerly self-employed persons who were not self-employed immediately before receiving unemployment benefit II (ALG II).
The decisive factor is only that they were self-employed most recently before submitting the application (following the rulings of the Higher Social Court of North Rhine-Westphalia, decision of August 23, 2010, file no. L 16 KR 329/10 B ER and decision of April 30, 2012, file no. L 16 KR 134/12 B ER).
sozialgerichtsbarkeit.de
Note:
A different view is held by the Berlin-Brandenburg Higher Social Court (LSG Berlin-Brandenburg), decision of December 23, 2010, file no. L 1 KR 368/10 B ER, L 1 KR 370/10 B PKH; decision of March 11, 2011, file no. L 1 KR 326/10.
3. Decisions on employment promotion law (SGB III)
3.1 – SG Mainz, Judgment of 09.04.2013 – S 4 AL 194/11
The employment agency must also take into account ancillary costs for condominiums owned by trainees who no longer live with their parents.
3.2 – Social Court Karlsruhe, Judgment of 22 April 2013 – S 11 AL 3545/12
No entitlement to unemployment benefit I due to the seamless transition rule
The seamless transition rule pursuant to Section 145 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III) does not apply if both insurance providers assume an objectively existing capacity to work and only the unemployed person believes that his capacity to work has been abolished.
The purpose of the seamless transition rule is not to ensure uninterrupted benefit payments until the conclusion of a pension law procedure.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – North Rhine-Westphalia State Social Court L 20 SO 358/12 B 05.04.2013 legally binding
According to Section 116a of the German Social Code, Book XII (SGB XII), in the version that came into force on April 1, 2011, the provision of Section 44 Paragraph 4 Sentence 1 of the German Social Code, Book X (SGB X), according to which social benefits pursuant to Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) are generally provided for a period of up to four years before the revocation, applies to the revocation of an unlawful, non-beneficial administrative act in the area of benefits under the German Social Code, Book XII (SGB XII), only with the proviso that the period of four years is replaced by a period of one year.
The conditions of the transitional provision of Section 136 SGB XII, according to which Section 116a SGB XII does not apply to applications under Section 44 SGB X that were submitted before 01.4.2011, i.e. before the new regulation of Section 116a SGB XII came into force, are not met.
In the present case, there is already no application pursuant to Section 44 of the German Social Code, Book X (SGB X), which the transitional provision of Section 136 of the German Social Code, Book XII (SGB XII) requires according to its clear wording (see also Greiser in jurisPK, SGB XII, Section 136 SGB XII, marginal note 15).
In this case, the social welfare agency did not subject the original approval notice to a review request submitted by the applicant pursuant to Section 44 of the German Social Code, Book X (SGB X), but rather conducted a review ex officio and subsequently partially revoked it pursuant to Section 44 of the German Social Code, Book X (SGB X).
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Düsseldorf, Judgment of 17 April 2013 – S 17 SO 483/11
No reimbursement of costs for inpatient hospital treatment as an emergency aid claim pursuant to Section 25 of the German Social Code, Book XII (SGB XII), if the applicant had substantial assets (Section 2, Paragraph 1 of the German Social Code, Book XII (SGB XII)).
Section 25 of the German Social Code, Book XII (SGB XII) definitively establishes the legal relationship between emergency aid providers and social welfare agencies. Recourse to general compensation provisions, in particular the rules governing public-law management without a mandate, is therefore excluded (see also the ruling of the Higher Social Court of North Rhine-Westphalia, judgment of February 27, 2012, case no.: L 20 SO 48/11).
6. Comments on court decisions under SGB II and SGB III
6.1 – Commentary by Judge Udo Geiger of the Berlin Social Court on the Mannheim Social Court judgment of 23 August 2012 – S 14 AL 2139/12: Reduction of discretion to zero in the decision on a start-up grant
See also: www.soziales-netzwerk-bgs.de
6.2 – Burden of proof for receipt of application letters
Bavarian State Social Court, decision of 21.05.2012 – L 16 AS 297/12 B ER (www.ra-klose.com/html/bay-lsg-l16as-297-12-b-er.html)
Editorial principle:
If someone can prove through witnesses that they sent their application letter, which the employer ultimately did not receive, then it cannot be assumed without taking evidence that the initiation of an employment relationship was prevented, because the letter could have been lost not only in the mail, but also in the processing department of the potential employer.
Editor's note:
Continue here: www.soziales-netzwerk-bgs.de
Thomé “Dossier Receipt Confirmation”: www.harald-thome.de (pdf)
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
