1. Decisions of the Federal Social Court of 29 November 2012 on basic income support for job seekers (SGB II)
1.1. BSG, Judgment of 29 November 2012 – B 14 AS 6/12 R
1. Issuing a final decision is not a suitable instrument in cases where, objectively, only a prospective estimate of the income situation is possible.
If the expected remuneration is contractually regulated as performance-based pay (as here on the basis of a quantity) or as time-based pay without a fixed number of hours agreed in advance, the scope of application of Section 40 Paragraph 1 Sentence 2 No. 1a SGB II (since 1 January 2011 Section 40 Paragraph 2 No. 1 SGB II) in conjunction with Section 328 Paragraph 1 SGB III is typically opened.
Issuing a final decision instead of a provisional decision is therefore unlawful from the outset, and Section 45 of the German Social Code, Book X (SGB X) is the relevant legal basis for its revocation.
In contrast, Section 48 of the German Social Code, Book X (SGB X) would only be applicable if there were a significant change with regard to the other requirements (Federal Social Court [BSG] of 21 June 2011 – B 4 AS 21/10 R).
2. The revocation notice is not unlawful due to a lack of specificity within the meaning of Section 33 of the German Social Code, Book X (SGB X), because it is harmless if, for the interpretation of the operative provision, reference must be made to the reasoning of the administrative act, to administrative acts previously issued between the parties, or to generally accessible documents.
The revocation orders in the revocation and reimbursement notice were sufficiently specified from the recipient's point of view by the amendment notice of the same day.
Note:
Regarding point 2, see BSG, judgment of 29 November 2012 – B 14 AS 196/11 R
The requirement of definiteness demands that the operative provisions of an administrative act be internally consistent in their regulatory content and enable the affected party, based on the understanding of a reasonable recipient, to adjust their conduct accordingly. The standard for the definiteness test is therefore the recipient's perspective; the operative provisions must make it completely, clearly, and unambiguously apparent to the parties involved what the authority intends.
It is harmless if, for the interpretation of the operative provision, it is necessary to refer to the reasoning of the administrative act, to administrative acts previously issued between the parties, or to generally accessible documents.
Recommended reading: Determining the income of self-employed individuals under the German Social Code, Book II (SGB II):
Prospective estimation of the income of self-employed individuals under the German Social Code, Book II (SGB II), an article by Norbert Hermann
Available here: www.harald-thome.de (pdf)
2. Decisions of the Federal Social Court of 28 February 2013 on social assistance (SGB XII)
2.1 – BSG, Judgment of 28.02.2013 – B 8 SO 12/11 R
The motivational payment constitutes income within the meaning of Section 82 of the German Social Code, Book XII (SGB XII); however, this income, as a benefit from independent welfare organizations pursuant to Section 84 Paragraph 1 of the SGB XII, is disregarded when calculating benefits because it does not improve the recipient's situation to such an extent that additional social assistance would be unjustified.
juris.bundessozialgericht.de
3. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – Hessian State Social Court, Decision of 21 March 2013 – L 6 AS 665/10
A minor receiving social assistance is entitled to additional needs support due to lactose and fructose intolerance in the amount of 30 percent per month of the portion of the standard benefit included for food and beverages (EUR 37.46)
Regarding the obligations of the beneficiary to provide evidence when claiming a higher additional need for a costly diet, if a nutrition-related additional expense of 30 percent of the amount included in the standard benefit for food and beverages has already been legally recognized.
Note:
See also the decision of the North Rhine-Westphalia State Social Court of 14 June 2011, – L 7 AS 552/11 B –
Granting of legal aid is not possible, as it should be noted that the recommendations of the German Association for Public and Private Welfare (DV) regarding the granting of dietary allowances in social assistance (3rd edition of October 1, 2008, www.deutscher.verein.de) expressly refer to adults; for minors, there is a lack of sufficient data (Social Court Berlin, judgment of November 12, 2010 – S 37 AS 38129/09, para. 29; BA's guidelines on the German Social Code, Book II (SGB II), § 21 SGB II, as of April 11, 2011, 21.23; Münder in LPK-SGB II, Commentary on the German Social Code, Book II (SGB II), 3rd edition 2009, § 21, para. 31).
3.2 – Bavarian State Social Court, decision of 04.04.2013 – L 11 AS 119/13 NZB
The appeal is admissible solely on the question of whether the determination of the reduction in benefits necessitates the revocation of the original benefit award notice.
sozialgerichtsbarkeit.de
Note:
See also the decision of the North Rhine-Westphalia State Social Court of 25 January 2013 – L 7 AS 1508/12 B –
Granting of legal aid is disputed because it is controversial whether the reduction by operation of law pursuant to Section 31b Paragraph 1 of the German Social Code, Book II (SGB II) is to be understood in such a way that the granting of benefits relating to the reduction period does not require a revocation of the benefit award pursuant to Section 48 of the German Social Code, Book X (SGB X) (cf. on the state of opinion, Lauterbach in Gagel, SGB II/SGB III, Section 31b SGB II, marginal note 2).
Regarding the predecessor regulation, the Federal Social Court stated in its judgment of 17 December 2009 (B 4 AS 30/09 R), with reference to Section 40 Paragraph 1 of the German Social Code, Book II (SGB II), that the granting of unemployment benefit II (Alg II) is a permanent administrative act, the legal force of which can only be broken by a contrary revocation decision.
3.3 – Berlin-Brandenburg State Social Court, decision of 25.03.2013 – L 31 AS 362/13 B ER legally binding
Bulgarian national is entitled to ALG II within the framework of the balancing of interests, the benefits are to be granted with a deduction of 20%.
1. Union citizens in possession of a freedom of movement certificate still have a lawful habitual residence in the Federal Republic of Germany even if they are not in Germany to look for work, but only to receive social benefits.
2. Social courts are not competent to review the legality of a freedom of movement certificate. This review must be carried out in immigration proceedings.
3. Union citizens with a freedom of movement certificate who are only staying in Germany to receive social benefits are entitled to benefits under the German Social Code, Book II (SGB II), because there is no social security exclusion for this group of cases.
Note:
See also the decision of the Berlin-Brandenburg State Social Court of 11 March 2013 – L 31 AS 318/13 B ER (legally binding).
EU citizens – exclusion from benefits – balancing of interests – job search
1. The question of whether Union citizens have a claim to benefits under the German Social Code, Book II (SGB II) despite the provision of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II, can only be decided in preliminary legal protection proceedings within the framework of a balancing of interests.
2. Whether the reservation lodged by the Federal Government against the European Convention on Social Security (ECS) with regard to benefits under Book II of the German Social Code (SGB II) is effective does not depend (only) on the admissibility of the reservation. The decisive factor is whether the signatory state concerned – here Spain – has objected to the reservation or has accepted it – even tacitly.
3. The question of whether the exclusion of benefits violates EU law cannot be decided in preliminary legal proceedings in view of the now established but contradictory case law of the state social courts.
3.4 – Berlin-Brandenburg State Social Court, decision of 08.04.2013 – L 25 AS 443/13 B ER legally binding.
British citizen is entitled to ALG II within the framework of the balancing of interests.
According to the established case law of the Senate, there are considerable doubts as to whether the applicant, who holds British citizenship, is subject to the exclusion clause of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II (see decisions of the Senate of 11 January 2010 – L 25 AS 1831/09 B ER – of 30 June 2011 – L 25 AS 535/11 B ER – and of 23 May 2012 – L 25 AS 837/12 B ER -).
Note:
The same result was reached by the Berlin-Brandenburg State Social Court in its decision of September 28, 2012 – L 20 AS 2047/12 B ER
A British citizen is entitled to provisional unemployment benefit II amounting to 80% of the standard benefit according to Section 20 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II).
Section 7 paragraph 1 sentence 2 no. 2 of the German Social Code, Book II (SGB II) is not contrary to European law. However, the provision is not applicable to nationals of a contracting state of the European Convention on Social and Cultural Rights of 11 December 1953 (ESCCR), because Article 1 ESCCR excludes this under international law (contrary to the Senate's decision of 21 June 2012, file no.: L 20 AS 1322/12 B ER).
3.5 – Berlin-Brandenburg State Social Court, decision of April 3, 2013 – L 25 AS 3335/12 B Legal aid legally
binding. Receipt of the action after judgment of the Federal Social Court – No grant of legal aid for action concerning standard benefit rates.
Following the Federal Social Court's (BSG) ruling (judgment of July 12, 2012 – B 14 AS 153/11 R) that the standard benefit rate for single persons was not set too low in an unconstitutional manner, the referral proceedings pending before the Federal Constitutional Court (BVerfG) under case number 1 BvL 12/12 (referral by the Berlin Social Court of April 25, 2012 – S 55 AS 29349/11) also lack sufficient prospects of success, especially since the BVerfG, in its decision of November 20, 2012, declined to accept the constitutional complaint against the aforementioned BSG judgment of July 12, 2012, and rejected the application for legal aid and the appointment of a lawyer, as the intended legal action was deemed to have no prospect of success (1 BvR 2203/12).
Note:
The same result was reached by the Lower Saxony-Bremen State Social Court in its decision of February 14, 2013 – L 11 AS 1171/12 NZB.
4. Decisions on Employment Promotion Law (SGB III)
4.1 – Social Court Karlsruhe, decision of 22.04.2013 – S 1 KO 1420/13 to S 1 KO 1429/13
No compensation is payable to an unemployed recipient of social benefits for time lost attending an oral hearing as the plaintiff in their own case.
www.sozialgericht-karlsruhe.de
Note:
See – LSG Saxony-Anhalt, decision of 18 November 2011, file number L 4 P 18/09
Recipients of Hartz IV benefits receive full compensation for their time spent appearing in court as witnesses. The only requirement for this compensation is that they manage the household and are not employed.
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Schleswig-Holstein State Social Court, Judgment of 27 February 2013 – L 9 SO 17/11
The costs for Petö therapy can also be covered within the framework of integration assistance according to §§ 53 ff. SGB XII.
The legal basis for recognition as social rehabilitation is, in this respect, Section 54 Paragraph 1 Number 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 12 Number 1 of the Integration Assistance Ordinance (Schleswig-Holstein Higher Social Court, Judgment of September 28, 2011 – L 9 SO 37/10 –, with further references), or Section 55 Paragraph 2 of the German Social Code, Book IX (SGB IX), and in particular Section 55 Paragraph 2 Number 3 of the German Social Code, Book IX (SGB IX) (Federal Social Court, Judgment of September 29, 2009 – B 8 SO 19/08 R –, para. 18), or Section 55 Paragraph 2 Numbers 2 and 7 (North Rhine-Westphalia Higher Social Court, Judgment of August 20, 2012 – L 20 SO 25/09 –, para. 56).
sozialgerichtsbarkeit.de
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – Social Court Düsseldorf, Judgment of 17 April 2013 – S 17 SO 466/10
Assets also include receivables, i.e., claims against third parties – in this case, life insurance – because all claims for restitution resulting from a contractual relationship after the termination of the contract must also be included in the assets.
The death insurance policy is also usable, since according to the general terms and conditions of the insurance company applicable to the insurance contract there is a right to early termination and a claim to payment of the surrender value.
The death insurance policy is also not excluded from realization under Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII), because only pure funeral insurance policies constitute protected assets.
However, this is not the case with death benefit insurance, as this type of insurance is ultimately, by its very nature, a capital-building life insurance policy that does not inherently have a specific purpose related to funeral expenses and/or grave maintenance (LSG NRW, Judgment of March 19, 2009, L 9 SO 5/07).
sozialgerichtsbarkeit.de
Note:
See 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 specific purpose for funeral costs has been agreed upon with the insurance company; in particular, early termination and use of the insurance for other purposes remains possible.
6.2 – Social Court Aachen, Judgment of 30 April 2013 – S 20 SO 159/12
A particular hardship that can preclude a claim for reimbursement of costs by the social welfare provider against the heirs of a deceased person receiving social welfare benefits does not exist simply because the inherited assets were attributable to the protected assets of the benefit recipient under social welfare law.
Note:
Similar result: Bavarian State Social Court, judgment of 23.02.2012 – L 8 SO 113/09
No particular hardship under Section 102 of the German Social Code, Book XII (SGB XII) arises from the fact that the inherited real estate is jointly owned by the heir and his spouse, and continues to occupy it after his death, even if this leads to the loss of a former family home.
7. Decisions on asylum law
7.1 – North Rhine-Westphalia State Social Court, decision of 24 April 2013 – L 20 AY 153/12 B ER legally binding
The legal concept of "unavoidably required" benefits, the amount of which is limited to under the legal consequences of the norm, must be interpreted in a manner consistent with the constitution in such a way that the scope of benefits must not fall below the minimum standard of living that ensures human dignity.
Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is – irrespective of the reasons for the reduction of benefits provided for therein or its prerequisites – (only) compatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the Basic Law (GG) if the "absolutely necessary" benefits do not fall below the minimum standard of living that ensures human dignity.
Note:
Different opinion: LSG Thüringen of 17.01.2013 – L 8 AY 1801/12 B ER and SG Münster of 27.02.2013 – S 12 AY 11/13 ER
Note:
A different view was also recently expressed – Social Court Stade, decision of March 5, 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.
7.2 – Thuringian State Social Court, Judgment of 17 January 2013 – L 8 AY 1801/12 B ER legally binding
Despite the judgment of the Federal Constitutional Court of 18 July 2012 (1 BvL 10/10 or 2/11), it is generally legally permissible to continue implementing benefit reductions according to § 1 a AsylbLG.
Note:
See also: Social Court Münster, decision of 27 February 2013, S 12 AY 11/13 ER
Note:
A different view was held by the Aachen Social Court in its decision of February 21, 2013 – S 20 AY 2/13 ER.
8. 10 years of Hartz IV – no all-clear for the social courts
Ten years after the introduction of basic income support for job seekers (Hartz IV), the workload of the social courts remains very high in most German states. The high number of pending legal cases, especially in the former East German states, is particularly concerning.
Conference participants are deeply concerned by the continued rise in the number of cases older than two years (so-called legacy cases). Particularly in social court proceedings, where matters often revolve around essential benefits such as social assistance, subsistence allowances, or pensions, effective and timely legal protection, enshrined in the Basic Law, is indispensable.
The conference fears that these compensation claims will increase, especially since the social courts are now receiving more and more complaints about delays.
Press release from the Bavarian State Social Court (LSG Bayern) dated May 10, 2013, available here: www.lsg.bayern.de
9. Federal Court of Justice (BGH), decision of 08.05.2013 – XII ZB 192/1
A person obligated to pay maintenance is not entitled to offset private claims against the maintenance creditor against maintenance claims that have been transferred to social welfare agencies.
beck-aktuell.beck.de
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
