1. Decisions of the Federal Social Court of 25 April 2013 on social assistance (SGB XII)
1.1 – Federal Social Court (BSG), Judgment of 25 April 2013 – B 8 SO 21/11 R
8th Senate of the Federal Social Court protects parents of children with reduced earning capacity
Section 43 paragraph 2 sentence 1 of the German Social Code, Book XII (SGB XII) is to be interpreted as meaning that the granting of basic income support for the elderly and those with reduced earning capacity is only excluded if one parent has a total annual income within the meaning of Section 16 of the German Social Code, Book IV (SGB IV) of at least 100,000 euros, but not if both parents together earn such an income.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, decision of 11 April 2013 – L 11 AS 109/13 B PKH
For the assumption of loan repayments for owner-occupied property, a special exceptional case must exist; according to case law, this is the case if properties were acquired before the receipt of benefits (BSG, judgment of 16.02.2012 – B 4 AS 14/11 R).
Note:
See also: Federal Social Court (BSG), judgment of 07.07.2011 – B 14 AS 79/10 R – and judgment of 18.06.2008 – B 14/11b AS 67/06 R
2.2 – Bavarian State Social Court, decision of 24 October 2012 – L 7 AS 692/12 B ER
It is disputed whether the stipulation of a direct transfer to the landlord pursuant to Section 22 Paragraph 7 of the German Social Code, Book II (SGB II) is an administrative act, a supplementary provision to an administrative act, or merely a reference to a factual act.
If – as in this case in the grant notice – there is no provision as to whom the payment should otherwise be made, only a preliminary injunction 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 repeatedly moved secretly, in violation of his obligations under Section 60 of the German Social Code, Book I (SGB I), sometimes to apartments outside the area of responsibility of the benefit provider under the German Social Code, Book II (SGB II). This alone is sufficient to affirm the requirements of Section 22 Paragraph 7 Sentence 2 of the German Social Code, Book II (SGB II).
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Baden-Württemberg Higher Social Court decision of 5 May 2011 – L 3 AS 1261/11 ER-B
If the basic income support provider decides (formally) by way of an administrative act to pay the costs for accommodation and heating directly to the landlord in accordance with Section 22 Paragraph 7 of the German Social Code, Book II (SGB II), then preliminary legal protection must be granted in accordance with Section 86b Paragraph 1 of the German Social Courts Act (SGG).
Objections and appeals have suspensive effect pursuant to Section 86a Paragraph 1 of the Social Court Act (SGG). Section 39 No. 1 of the Social Code, Book II (SGB II), in the version applicable from April 1, 2011, does not apply, as the direct payment leaves the entitlement of the employable benefit recipient unaffected in principle.
2.3 – Bavarian State Social Court, decision of 28 March 2013 – L 7 AS 44/13
Objections and legal actions against an amendment decision that has become the subject of pending preliminary proceedings or legal proceedings pursuant to Section 86 of the Social Court Act (SGG) or Section 96 Paragraph 1 of the Social Court Act (SGG) are inadmissible.
As long as the original legal proceedings are pending before the court, the procedural obstacle of lis pendens exists for legal proceedings against the amended decision pursuant to Section 202 of the Social Court Act (SGG) in conjunction with Section 17 Paragraph 1 Sentence 2 of the Courts Constitution Act (GVG). After the conclusion of the original legal proceedings, the procedural obstacle of res judicata exists pursuant to Section 141 of the Social Court Act (SGG), unless the amended decision was inadvertently omitted.
An appeal against a judgment that rightly dismissed a claim due to pending litigation or conflicting res judicata is unfounded.
2.4 – Bavarian State Social Court, Judgment of 18 March 2013 – L 7 AS 142/12
If the contested decision contains correct instructions on how to file an objection, and yet a lawsuit is filed immediately, the lawsuit is inadmissible and must therefore be dismissed. A lawsuit expressly designated as such does not constitute an objection, is not to be interpreted as an objection, and cannot be reinterpreted as one. The instructions regarding the right to file an objection preclude any errors or confusion. There is no basis for assuming that the plaintiff intended to pursue a different legal remedy than the one specified.
In this situation, there is no need to suspend the proceedings to allow for a preliminary hearing.
The opposing view expressed in the literature is based on rulings of the Federal Social Court (BSG) that were issued in specific procedural situations, in which, for example, it was unclear whether an objection procedure was even necessary.
Note:
See also: BayLSG, judgment of 24 November 2011, L 10 AL 64/09 and BayLSG, judgment of 29 March 2012, L 7 AS 1044/11
2.5 – Bavarian State Social Court, decision of 15 March 2013 – L 7 AS 131/13 B ER
Reduction of unemployment benefit II by 100 percent – court rejects order for suspensive effect – sanction notice is immediately enforceable.
The sanction results in the suspension of unemployment benefit II for three months. This can lead to severe and unreasonable legal disadvantages, for which, however, no evidence whatsoever has been presented. It is also astonishing in this context that, despite his stated need for assistance, the applicant continues to pay a Rürup pension of €195 per month in accordance with Section 10 Paragraph 1 No. 2 b of the German Income Tax Act (EStG).
There are no constitutional concerns. Supplementary benefits in kind or benefits in kind are available upon application and have been granted. Furthermore, the assumption of debts to secure accommodation under Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), is generally possible even if the debts arose as a result of a sanction.
According to the decision of the Federal Constitutional Court of 12 May 2005, 1 BvR 569/05, in urgent proceedings concerning subsistence benefits, a decision must be made based on a balancing of interests if (1.) serious and unreasonable legal impairments may arise, (2.) the unchanged standard of review of Section 86b of the Social Courts Act would lead to a rejection of the application for preliminary legal protection, and (3.) the factual and legal situation cannot be conclusively examined.
If these three conditions are met, a balancing of interests must be carried out on the applicant's side when weighing the public interest in the immediate enforcement of the contested regulation against the applicant's private interest in being spared the enforcement of the administrative act for the time being. This ensures that the requirements of the Federal Constitutional Court are also implemented when ordering the suspension of enforcement.
Note:
Bavarian State Social Court, decision of 21.12.2012 – L 11 AS 850/12 B ER
For the assumption of rent arrears that have arisen due to a complete cessation of benefits pending a sanction, within the framework of preliminary legal protection.
2.6 – Schleswig-Holstein State Social Court, judgment of 21.09.2012 – L 3 AS 42/10 legally binding
The landlord cannot assert a claim under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) for payment of outstanding rent and damages arising from the tenancy between herself and the persons in need of assistance against the basic income support provider, as she is not entitled to benefits.
A claim cannot be derived from Section 22 Paragraph 4 of the German Social Code, Book II (SGB II). This provision does not establish a legal basis for landlords. It does not create an independent claim for landlords against benefit providers for payment of rent. This is because the provision does not provide protection for third parties, but rather serves to protect those in need of assistance in cases of uneconomical behavior.
Note:
See also: North Rhine-Westphalia Higher Social Court, judgment of 11 November 2010, L 9 AS 480/10, Landshut Social Court, judgment of 11 July 2012 – S 11 AS 78/12
2.7 – North Rhine-Westphalia State Social Court, decision of 22 April 2013 – L 19 AS 561/13 NZB legally binding.
The subsequent demand for household energy costs, which are included in the standard allowance pursuant to Section 20 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), can constitute an unavoidable need to secure subsistence within the meaning of Section 24 Paragraph 1 Sentence 1 of the SGB II, if the energy cost debts are a subsequent payment amount in an annual statement during the ongoing receipt of benefits, which arose despite regularly paid advance payments.
According to Section 42a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), which essentially corresponds in content to the provision of Section 23 Paragraph 1 Sentence 3 SGB II as it was in force until December 31, 2010, a loan under Section 24 Paragraph 1 Sentence 1 SGB II is repaid by a monthly deduction of 10 percent of the borrower's applicable standard benefit. The provision of Section 42a Paragraph 2 Sentence 1 SGB II thus mandates the repayment of a loan under Section 24 Paragraph 1 Sentence 1 SGB II. There is no legal basis in the SGB II for granting a loan that is entirely non-repayable (cf. regarding the predecessor provision of Section 23 Paragraph 1 Sentence 3 SGB II: Federal Social Court (BSG) judgment of May 10, 2011 – B 4 AS 11/10 R).
2.8 – North Rhine-Westphalia State Social Court, decision of 19.04.2013 – L 6 SF 62/13 ER legally binding.
A suspension of enforcement of the preliminary injunction is only possible in exceptional cases (Bavarian State Social Court, decision of 08.02.2006, L 10 AS 17/06 ER).
The Social Court awarded the applicants standard benefits to secure their livelihood. These are subsistence-level benefits, the provision of which is a constitutional obligation of the state, serving to protect human dignity (Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05). In such cases, the decision to suspend enforcement must be based primarily and decisively on the consequences of the decision for the person seeking assistance.
2.9 – Lower Saxony-Bremen State Social Court, 15th Senate, Judgment of March 28, 2013, L 15 SF 10/12 EK AS:
A Hartz IV recipient had to wait four years for the court's decision regarding a dispute over travel expense reimbursement totaling €42.06 – Compensation for excessive length of proceedings – Redress in another way
1. A duration of proceedings exceeding four years and three months, or three years and eleven months for two consolidated proceedings in which a total of EUR 42.06 in travel expense reimbursement was in dispute, is unreasonable within the meaning of Section 198 Paragraph 1 of the Courts Constitution Act (GVG), taking into account all the circumstances of the individual case, in particular with regard to longer periods of inactivity on the part of the court – which were not justified by objective reasons.
2. In view of the minor amount of the monetary claim in dispute in the initial proceedings, redress by a finding by the compensation court that the length of the proceedings was unreasonable is sufficient pursuant to Section 198 Paragraph 2 Sentence 2 in conjunction with Paragraph 4 Sentence 1 of the Courts Constitution Act.
3. In the cost decision to be made at the court's discretion pursuant to Section 201 Paragraph 4 of the Courts Constitution Act (GVG), the mere finding of excessive length of proceedings must be considered as a partial success of the compensation claim.
www.rechtsprechung.niedersachsen.de
2.10 – State Social Court of Saxony-Anhalt, decision of 17 April 2013 – L 2 AS 951/12 B ER legally binding.
Section 7 para. 5 SGB II applies to funding with training allowance.
The applicant is not entitled to unemployment benefit II (Alg II) during her participation in vocational training as an office clerk, because this entitlement is excluded according to § 7 para. 5 SGB II.
The Senate abandons the opposing view that this exclusion of benefits does not apply to disabled people entitled to training allowance under the German Social Code, Book III (as the Senate held in its decision of December 6, 2011 – L 2 AS 438/11 B ER).
The application of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) is not excluded because the applicant is not entitled to vocational training assistance (BAB), but to training allowance, a benefit for participation in working life (Sections 112 et seq. of the German Social Code, Book III (SGB III)) for disabled people.
The mere fact that the training is eligible for funding in principle is a prerequisite for the legal consequence of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), and thus for the exclusion of benefits to secure subsistence. The decisive factor is the so-called abstract eligibility for funding (established case law of the Federal Social Court (BSG), inter alia, judgment of September 6, 2007, B 14/7b AS 28/06 R; judgment of March 22, 2012 with further references, B 4 AS 102/11 R).
Note:
See also: Berlin-Brandenburg State Social Court, decision of 18 January 2013 L 34 AS 2968/12 B ER and Lower Saxony-Bremen State Social Court, decision of 4 July 2012 – L 15 AS 168/12 B ER
3. Decisions on employment promotion law (SGB III)
3.1 – Hesse State Social Court, Judgment of April 30, 2013 – L 6 AL 107/10 Appeal granted
Extensive entitlement to further training for those persecuted in the GDR – Further training does not have to be necessary due to unemployment
Individuals recognized as victims of persecution under the Vocational Rehabilitation Act are reimbursed for the costs of further training, provided these costs are not covered under the German Social Code, Book III. The further training does not have to be necessary due to (impending) unemployment.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Hessian State Social Court, Judgment of 08.03.2013 – L 9 SO 52/10
No approval of elderly care benefits if the claimed needs are already covered by the standard benefits.
Neither grave maintenance nor monthly trips to visit relatives could justify benefits exceeding the standard allowance. Personal visits by the person in need to relatives are not strictly necessary due to modern telecommunications.
The purpose of the benefit under Section 71 of the German Social Code, Book XII (SGB XII), is to prevent the isolation of social assistance recipients. This risk does not exist in the case of the social assistance recipient, as he lives with his spouse. Costs for cultural events are covered by the standard benefit rate. Furthermore, the person in need receives an additional allowance under Section 42, Paragraph 3, Number 3 of the SGB XII, which expands his financial resources.
4.2 – Thuringian State Social Court, judgment of 23 May 2012 – L 8 SO 85/11 legally binding
The liquidation of assets from a funeral expenses insurance policy does not constitute an unreasonable hardship that must be considered under Section 90 Paragraph 3 of the German Social Code, Book XII (SGB XII).
In any case, if the loss in value is less than 20%, no particular hardship can be assumed (left open, confirming the lower asset privilege in social assistance: BSG, judgment of August 25, 2011 – B 8 SO 19/10 R).
Only a genuine funeral expenses insurance policy is protected; no agreement was made with the insurance company to earmark the funds for funeral costs; in particular, early termination and use of the insurance for other purposes remains possible (cf. LSG NRW, judgment of March 19, 2009 – L 9 SO 5/07).
Note:
SG Detmold, Judgment of 30 July 2010 – S 16 (19) SO 116/08
Capital from a funeral pre-arrangement contract and a funeral expenses insurance policy can constitute protected assets
Pure funeral expense insurance policies can enjoy protection if contractual arrangements have been made to ensure that any other use of the assets is excluded or at least significantly impeded (LSG NRW, Judgment of 19.03.2009 – L 9 SO 5/07 referring to LSG NRW, Judgment of 19.11.2007 – L 20 SO 40/06).
Note:
Federal Social Court (BSG), judgment of 18 March 2008 – B 8/9b SO 9/06 R
Assets from a reasonable funeral pre-arrangement contract are not to be taken into account when granting social assistance; their liquidation constitutes a hardship, unless the assets were reduced by concluding the funeral pre-arrangement contract with the intention of creating the conditions for granting or increasing the benefit.
5. Decisions of the social courts on asylum law
5.1 – Social Court Stade, decision of 05.03.2013 – S 33 AY 53/12 ER
The granting of limited benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is permissible even after the ruling of the Federal Constitutional Court of July 18, 2012 – 1 BvL 10/10 and 1 BvL 2/11 – provided the principle of proportionality is observed. Guidance from Section 26 of the German Social Code, Book XII (SGB XII) appears advisable.
The conditions of Section 1a No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are met. The applicant is responsible for the fact that, in the past, a procedure to obtain substitute travel documents could not be carried out, even though he was apparently able to submit documents proving his identity – as demonstrated by the submission of the documents to the city of Stade. The lack of the required documents is also the reason why measures to terminate his residence cannot yet be implemented.
6. Hartz IV: Forced early retirement… Lawyer Jan Häußler sees the practices of the Hartz IV authorities as unlawful.
www.gegen-hartz.de
Note:
Benefit recipients will receive a notification that no further benefits will be paid to them until the required cooperation is provided – the basic income support provider under the German Social Code, Book II (SGB II) assumes that it is entitled to refuse benefits under the SGB II if the benefit recipient fails to cooperate in the pension application process.
This assumption is incorrect, and case law and commentary have not followed it (cf. LSG Saxony-Anhalt, decision of 12 January 2009, file no.: L 5 B 284/08 AS ER; Burkiczak in: BeckOK SGB II, § 5 para. 5; Bieback in: Gagel, § 5 SGB II, para. 87; Luthe in: Hauck/Noftz, SGB II, § 5 para. 119a with further references).
LSG Saxony-Anhalt, decision of 12.01.2009, file number: L 5 B 284/08 AS ER
Guiding principles:
A denial of benefits cannot be based on the fact that the beneficiary does not register with the Federal Employment Agency and therefore a (still) existing residual entitlement to unemployment benefits does not lead to a reduction in need.
No corresponding duty to cooperate arises from Sections 56 et seq. of the German Social Code, Book II (SGB II), nor from Sections 60 et seq. of the German Social Code, Book I (SGB I). The only legal sanction in this respect is the right of the benefit provider, pursuant to Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), to submit the benefit application itself.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
