1. Decisions of the Federal Social Court of April 25, 2013 on social assistance (SGB XII)
1.1 - BSG, judgment of April 25, 2013 - B 8 SO 21/11 R
8. Senate of the Federal Social Court protects parents of children with reduced earning capacity
Section 43, Paragraph 2, Sentence 1 of the Social Code, SGB , if both parents together earn such an income.
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - Bavarian State Social Court, decision of April 11, 2013 - L 11 AS 109/13 B PKH
In order for repayment payments to be made for owner-occupied property, there must be a special exceptional case; according to case law, this is the case if real estate was acquired before the benefit was received (BSG, judgment of February 16, 2012 - B 4 AS 14/11 R).
Note:
Likewise: BSG, judgment of July 7, 2011 - B 14 AS 79/10 R - and judgment of June 18, 2008 - B 14/11b AS 67/06 R
2.2 – Bavarian State Social Court, decision of October 24, 2012 – L 7 AS 692/12 B ER
It is controversial whether the determination of a direct transfer to the landlord according to Section 22 Paragraph 7 SGB II is an administrative act, a subsidiary provision to an administrative act or just a reference to a real act.
If - as here in the approval decision - there is no regulation as to who else the payment should be made, only an interim order can provisionally establish a new payment method in expedited proceedings.
The applicant cannot assert a claim for an order because the transfer of the rent to the respective landlord complies with the requirements of Section 22 Paragraph 7 Sentence 2 SGB II.
The benefit recipient has secretly moved several times in violation of his obligations under Section 60 SGB I, sometimes to apartments outside the area of responsibility of the service provider under SGB II. This alone is enough to affirm the requirements of Section 22 Paragraph 7 Sentence 2 SGB II.
Note:
LSG Baden-Württemberg resolution of May 5, 2011 – L 3 AS 1261/11 ER-B
If the basic security provider (formally) decides by means of an administrative act to pay the costs for accommodation and heating directly to the landlord in accordance with Section 22 Paragraph 7 SGB II, interim legal protection must be granted in accordance with Section 86b Paragraph 1 SGG.
Objections and legal challenges have a suspensive effect in accordance with Section 86a Paragraph 1 SGG. Section 39 No. 1 SGB II in the version valid from April 1, 2011 does not apply, as the direct payment essentially leaves the entitlement of the employable person entitled to benefits unaffected.
2.3 – Bavarian State Social Court, decision of March 28, 2013 – L 7 AS 44/13
Objections and legal action against a change notice that has become the subject of an already pending preliminary procedure or legal action in accordance with Section 86 SGG or Section 96 Paragraph 1 SGG are inadmissible.
As long as the original legal action is pending before the court, legal proceedings against the amending decision are subject to the legal impediment of other legal proceedings pursuant to Section 202 SGG in conjunction with Section 17 Paragraph 1 Sentence 2 GVG. After the original legal action has been completed, the obstacle to the process is the conflicting legal force according to Section 141 SGG, unless the decision on the change was inadvertently not taken into account.
An appeal against a judgment that rightly dismissed a lawsuit due to other legal proceedings or conflicting legal force is unfounded.
2.4 – Bavarian State Social Court, judgment of March 18, 2013 – L 7 AS 142/12
If the disputed decision contains appropriate legal remedies for the objection and an action is nevertheless filed directly, the action is inadmissible and must therefore be dismissed. A lawsuit expressly designated as such does not contain any contradiction, is not to be interpreted as a contradiction and is not to be reinterpreted into a contradiction. The instructions on how to object prevent errors or confusion. There is no room for the assumption that the plaintiff wanted to take a legal remedy other than the one he specified.
In this situation, there is no need to suspend the proceedings to catch up on a preliminary procedure.
The opposite view expressed in the literature is based on judgments of the BSG that were issued in special procedural situations in which it was unclear whether an objection procedure was even necessary.
Note:
Likewise: BayLSG, judgment of November 24th, 2011, L 10 AL 64/09 and BayLSG, judgment of March 29th, 2012, L 7 AS 1044/11
2.5 – Bavarian State Social Court, decision of March 15, 2013 – L 7 AS 131/13 B ER
Reduction of unemployment benefit II by 100 percent - court rejects order of suspensive effect - sanction decision can be enforced immediately.
As a result of the sanction, unemployment benefit II will no longer apply for three months. This can result in serious and unreasonable legal impairments, although nothing has been said about this. In this context, it is also astonishing that the applicant continues to receive a Rürüp pension in accordance with Section 10 Paragraph 1 No. 2 b EStG with 195 euros per month, despite his stated need for help.
There are no constitutional concerns. Additional benefits in kind or monetary benefits are possible upon request and have been granted. In addition, it is generally possible to assume debts to secure accommodation in accordance with Section 22 Paragraph 8 SGB II even if the debts arose as a result of a sanction.
According to the decision of the BVerfG of May 12, 2005, 1 BvR 569/05, in expedited proceedings regarding subsistence benefits, a decision must be made based on a consideration of the consequences if (1.) serious and unreasonable legal impairments can arise, (2.) the unchanged test standard of § 86b SGG would lead to a rejection of the application for interim legal protection and (3.) the factual and legal situation cannot be conclusively examined.
If these three requirements are met, when weighing up the public interest in the immediate implementation of the disputed regulation and the private interest of the applicant in being spared from the implementation of the administrative act for the time being, a weighing of the consequences must be carried out on the side of the applicant's interests. This means that the requirements of the BVerfG are also implemented when ordering the suspensive effect.
Note:
Bavarian State Social Court, decision of December 21, 2012 - L 11 AS 850/12 B ER
To take over rental debts that arose due to a complete cessation of the provision of services in view of a sanction, within the framework of interim legal protection.
2.6 - Schleswig-Holstein State Social Court, judgment of September 21, 2012 - L 3 AS 42/10 legally binding
Due to the lack of her own need for help, the landlord cannot assert a claim to payment of outstanding rent claims and claims for damages from the rental relationship between her and the person in need of help from the basic social security provider in accordance with Section 22 Paragraph 1 SGB II, because she is not entitled to benefits.
A claim cannot be derived from Section 22 Paragraph 4 SGB II. The provision of Section 22 Paragraph 4 SGB II does not constitute a basis for landlords' claims. It does not establish a landlord's own right to payment of rent against service providers. The regulation does not provide third-party protection, but rather serves to protect those in need of help in the event of uneconomic behavior.
Note:
Likewise: LSG North Rhine-Westphalia, judgment of November 11, 2010, L 9 AS 480/10, Landshut Social Court, judgment of July 11, 2012 - S 11 AS 78/12
2.7 - State Social Court of North Rhine-Westphalia, decision of April 22, 2013 - L 19 AS 561/13 NZB legally binding
The additional demand for house energy costs, which are included in the standard requirement according to Section 20 Paragraph 1 Sentence 1 SGB II, can be an unavoidable need for security of subsistence within the meaning of Section 24 Paragraph 1 Sentence 1 SGB II if the energy cost debt is an additional payment amount in an annual bill during the ongoing receipt of benefits, which arose despite regularly paid advance payments.
According to Section 42a Paragraph 2 Sentence 1 SGB II, which essentially corresponds in content to the provision of Section 23 Paragraph 1 Sentence 3 SGB II that was valid until December 31, 2010, a loan according to Section 24 Paragraph 1 Sentence 1 SGB II is repaid by a monthly offset of 10 percent of the borrower's relevant standard requirements. The regulation of Section 42a Paragraph 2 Sentence 1 SGB II therefore requires the repayment of a loan in accordance with Section 24 Paragraph 1 Sentence 1 SGB II. There is no legal basis in SGB II for granting a loan that is not subject to repayment from the outset (see the previous provision of Section 23 Paragraph 1 Sentence 3 SGB II: BSG judgment of May 10, 2011 - B 4 AS 11/10 R).
2.8 - State Social Court of North Rhine-Westphalia, decision of April 19, 2013 - L 6 SF 62/13 ER legally
binding Suspension of enforcement of the interim order is only possible in exceptional cases (Bayerisches LSG, decision of February 8, 2006, L 10 AS 17/ 06 ER).
The social court awarded the applicants standard benefits to secure their livelihood. These are subsistence benefits, the granting of which is a constitutional obligation of the state that serves to protect human dignity (BVerfG, decision of May 12, 2005 - 1 BvR 569/05). In such cases, the decision to suspend enforcement must be based essentially and significantly on the consequences of the decision for the person seeking help.
2.9 - State Social Court of Lower Saxony-Bremen 15th Senate, judgment of March 28, 2013, L 15 SF 10/12 EK AS
Hartz IV recipient had to wait 4 years for the court's decision, during which travel expenses totaled EUR 42.06 was in dispute - Compensation for unmeasured length of proceedings - Compensation in another way
1. A procedural duration of more than four years and three months or three years and eleven months for two connected proceedings in which reimbursement of travel costs totaling EUR 42.06 was disputed, taking into account all the circumstances of the individual case, in particular with regard to: to longer periods of inaction by the court - which is not justified by objective reasons - inappropriate i. S. of Section 198 Paragraph 1 GVG.
2. In view of the small amount of the cash payment at issue in the main proceedings, pursuant to Section 198 Paragraph 2 Sentence 2 i. V. m. Paragraph 4 Sentence 1 GVG Compensation through the determination of the compensation court that the duration of the proceedings was unreasonable is sufficient.
3. When making a reasonable decision on costs in accordance with Section 201 Paragraph 4 GVG, the simple determination of the excessive length of the proceedings must be taken into account as a partial success of the compensation claim.
www.rechtsprachung.niedersachsen.de
2.10 - State Social Court of Saxony-Anhalt, decision of April 17, 2013 - L 2 AS 951/12 B ER legally binding
Section 7 Paragraph 5 SGB II applies to funding with training allowance
The applicant is not entitled to Alg II while taking part in the vocational training as an office clerk because this claim is excluded according to Section 7 Paragraph 5 SGB II.
The Senate takes the opposite view, according to which this exclusion of benefits does not apply to disabled people who are entitled to training allowances according to SGB III (as the Senate stated in its resolution of December 6, 2011 - L 2 AS 438/11 B ER).
The application of Section 7 Paragraph 5 SGB II is not excluded because the applicant is not entitled to BAB, but rather to training allowance, a benefit for participation in working life (Sections 112 ff SGB III) for disabled people.
Because the basic eligibility of the training alone is a prerequisite for the legal consequences of Section 7 Paragraph 5 SGB II and thus the exclusion of benefits to secure one's livelihood. It depends on the so-called abstract eligibility (standing case of the Federal Social Court (BSG), including judgment of September 6, 2007, B 14/7b AS 28/06 R; judgment of March 22, 2012 mwN, B 4 AS 102/ 11 R).
Note:
Likewise: Berlin-Brandenburg State Social Court, decision of January 18, 2013 L 34 AS 2968/12 B ER and Lower Saxony-Bremen State Social Court, decision of July 4, 2012 - L 15 AS 168/12 B ER
3. Decisions on employment promotion law (SGB III)
3.1 - State Social Court of Hesse, judgment of April 30, 2013 - L 6 AL 107/10 Appeal was permitted
Extensive right to further training for those persecuted in the GDR - further training does not have to be necessary because of unemployment
Persons who are recognized as victims of persecution under the Vocational Rehabilitation Act will have the costs of further training reimbursed, provided these costs are not borne under the Third Book of the Social Security Code. Further training does not have to be necessary because of (threatening) unemployment.
4. Decisions of the state social courts on social assistance (SGB XII)
4.1 - Hessian State Social Court, judgment of March 8, 2013 - L 9 SO 52/10
No approval of elderly care benefits if the stated needs are already covered by the standard benefits.
Benefits beyond the standard requirement cannot be granted either for grave maintenance or for monthly trips to visit relatives. Personal visits by those in need of help to their relatives are not absolutely necessary due to modern telecommunications means.
The purpose of the benefit according to Section 71 SGB XII is to prevent social welfare recipients from becoming lonely. This risk does not exist for the social welfare recipient because he lives with his wife. Services for cultural events are covered by the standard rate. Furthermore, the person in need of help receives additional needs in accordance with Section 42 Paragraph 3 No. 3 SGB XII, which expands his financial scope.
4.2 - Thuringian State Social Court, judgment of May 23, 2012 - L 8 SO 85/11 legally binding
The realization of the assets of the death benefit insurance does not represent an unreasonable hardship that must be taken into account in accordance with Section 90 Paragraph 3 SGB XII.
In any case, if there is a loss of value of less than 20%, no particular hardship can be assumed (left open, confirming the lower asset privileges in social assistance: BSG, judgment of August 25, 2011 - B 8 SO 19/10 R).
Only one - real death benefit insurance is protected, a earmarking for funeral costs was not agreed with the insurance, in particular early termination and use of the insurance for other purposes remains possible (see: LSG NRW, judgment of March 19, 2009 - L 9 SUN 5/07).
Note:
SG Detmold, judgment of July 30, 2010 - S 16 (19) SO 116/08
Capital from a funeral provision contract and death benefit insurance can represent protective assets
Pure death benefit insurance can therefore enjoy protection if contractual arrangements have been made which ensure that any other use of the assets is excluded or at least made significantly more difficult (LSG NRW, judgment of March 19, 2009 - L 9 SO 5/07 with reference to LSG NRW, judgment of November 19, 2007 - L 20 SO 40/06).
Note:
BSG, judgment of March 18, 2008 – B 8/9b SO 9/06 R
Assets from an appropriate funeral provision contract are not to be taken into account when granting social assistance; its use represents hardship, unless the conclusion of the funeral provision contract reduced the assets with the intention of achieving the conditions for granting or increasing the benefit.
5. Decisions of the social courts on asylum law
5.1 – Stade Social Court, decision of March 5, 2013 – S 33 AY 53/12 ER
The granting of limited benefits in accordance with Section 1a AsylbLG is also permissible according to the judgment of the Federal Constitutional Court of July 18, 2012 - 1 BvL 10/10 and 1 BvL 2/11 - taking into account the principle of proportionality. An orientation towards Section 26 SGB XII seems necessary.
The facts of Section 1a No. 2 AsylbLG are fulfilled. The applicant is responsible for the fact that a procedure for obtaining replacement passport papers could not be carried out in the past, although it would obviously have been possible for him to submit documents relating to his identity - as the submission of the documents to the city of Stade shows. The lack of the necessary papers is also the reason why measures to end your stay cannot yet be carried out.
6. Hartz IV: Forced to retire early... The lawyer Jan Häußler sees the practice of the Hartz IV authorities as illegal behavior.
www.gegen-hartz.de
Note:
Those entitled to benefits will receive a notification that no more benefits will be paid to them until the act of cooperation is remedied - the basic security provider according to SGB II assumes that if those entitled to benefits do not cooperate when applying for a pension, they are entitled to refuse benefits according to SGB II is.
This assumption is wrong and case law and commentary have not followed it (cf. LSG Saxony-Anhalt, decision of January 12, 2009, Ref.: L 5 B 284/08 AS ER; Burkiczak in: BeckOK SGB II, § 5 Rn.5; Bieback in: Gagel, § 5 SGB II, Rn.87; Luthe in: Hauck/Noftz, SGB II, § 5 Rn. 119a with further references).
LSG Saxony-Anhalt, resolution of January 12, 2009, Ref.: L 5 B 284/08 AS ER
Guiding principles:
A denial of benefits cannot be based on the fact that the person entitled to benefits does not register with the Federal Employment Agency and therefore a (still) existing residual entitlement to unemployment benefit does not lead to a reduction in need.
A corresponding obligation to cooperate does not arise from Sections 56 ff. SGB II nor from § 60 ff. SGB I. The only legal sanction in this respect is the right of the service provider in accordance with Section 5 Paragraph 3 Sentence 1 SGB II to submit the application for benefits themselves.
Author of the case law ticker: Willi 2 von Tacheles
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
