1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Hessian State Social Court, decision of 02.07.2013 – L 9 AS 183/13 B ER
An Italian citizen is entitled to ALG II (unemployment benefit II) as part of the balancing of interests.
1. The legal possibility of taking up employment subject to approval under Section 39 of the Residence Act is sufficient. Therefore, abstract and general access to the labor market is sufficient (see decisions of the adjudicating Senate of 4 January 2013 – L 9 AS 681/12 B ER, L 9 AS 707/12 B ER).
2. The definition of habitual residence for foreigners in Section 30 Paragraph 3 Sentence 2 of the German Social Code, Book I (SGB I) must, in principle, be interpreted uniformly, as is particularly supported by the wording of the law. It would be contrary to the standardization of the concept of habitual residence if, by invoking a so-called "interpretive interpretation," criteria not found in the wording of the law were established as legal requirements for residence status, thereby denying certain groups of people access to subsistence benefits to secure their livelihood (cf. Federal Social Court [BSG], Judgment of January 30, 2013 – B 4 AS 54/12 R).
3. The question of the conformity of the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) with European law is disputed. In this respect, the Senate has consistently held, based on a balancing of interests and consequences to be carried out, that the applicants' interests in securing their subsistence minimum, while respecting the principle of human dignity, carry more weight than the fiscal interests of the SGB II benefit provider in avoiding potentially unjustified benefit payments (see decisions of the adjudicating Senate of January 4, 2013 – L 9 AS 681/12 B ER, L 9 AS 707/12 B ER and L 9 AS 781/12 B ER).
Source: socialcourtsability.de
Note:
The same result applies: LSG NRW, decision of 03.06.2013 – L 7 AS 830/13 B ER, legally binding.
See also current Thomé Downloads: Bernd Eckhardt: Social Law justament 2-2013 – Focus on EU citizens. Issue 2-2013 is available here: www.harald-thome.de (pdf)
1.2 – State Social Court Berlin-Brandenburg, judgment of 19.03.2013 – L 34 AS 821/11 legally
binding. Persons entitled to benefits under § 1 AsylbLG are excluded from ALG II benefits.
There are no constitutional concerns regarding the exclusion of those entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) from basic income support for job seekers, as stipulated in Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) (see Federal Social Court (BSG), judgment of November 13, 2008 – B 14 AS 24/07 R).
Source: socialcourtsability.de
1.3 – Thuringian State Social Court, decision of 04.07.2013 – L 9 AS 395/11 legally binding
If the child has sufficient income to cover their needs according to the German Social Code, Book II (SGB II), they are no longer part of the benefit unit.
The portion of the child benefit not required to cover the child's needs is then allocated to the person entitled to the child benefit in accordance with the rules of the Federal Child Benefit Act (BKGG) and distributed as their income according to the rules of the German Social Code, Book II (SGB II) (established case law of the Federal Social Court, cf. judgment of June 18, 2008, B 14 AS 55/07 R; judgment of July 7, 2011 – B 14 KG 2/09 R).
There is no contradiction between the classification of child benefit as income under civil law and social law. Both Section 11 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) and now Section 1612b of the German Civil Code (BGB) stipulate – deviating from the general classification under child benefit law – that the child benefit allocated to the child must be used to cover the child's social security or maintenance needs.
Source: socialcourtsability.de
Note:
The same result was reached in: LSG NRW, decision of April 13, 2013, L 6 AS 2234/12 NZB)
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Duisburg, decision of 02.08.2013 – S 35 AS 7327/10
New “customer management concept” – refusal to engage in conversation is unlawful
Job centers violate their duty to provide advice pursuant to Section 14 of the German Social Code, Book I (SGB I), if benefit recipients do not receive appointments for consultations with a case worker.
Source: Attorney Jan Häußler, specialist lawyer for social law, 45127 Essen
The court decision can be read here: www.jan-haeussler.de (pdf)
2.2 – Social Court Leipzig, decision of February 15, 2013 – S 18 AS 281/13 ER
If a first breach of duty under Section 31 SGB II has not yet been established by a corresponding decision at the time of a further breach of duty, then a JobCenter cannot sanction a further breach of duty as a first repeated breach of duty in accordance with Section 31a Paragraph 1 Sentence 2 SGB II.
Multiple breaches of duty under Section 31 of the German Social Code, Book II (SGB II) within a calendar month or before the sanctioning of the connecting factor cannot be subject to separate sanctioning.
The law does not provide for the possibility of sanctioning multiple breaches of duty under Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
In the case of an employable benefit recipient, a change in behavior can only be effected if an official reaction has occurred following a breach of duty.
Source: Guiding Principles – Dr. Manfred Hammel, Caritas Association for Stuttgart e. V
Note:
A different view is held by: SG Aachen, judgment of 21.06.2013 – S 11 AS 1041/12
2.3 – Social Court Mainz, decision of March 11, 2013 – S 17 AS 129/13 ER
According to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), a job center must also temporarily cover actually unreasonable heating costs if the individual could not recognize the unreasonableness or had no possibility of reducing them to a reasonable level.
As a rule, a social security agency (SGB II provider) must therefore issue a cost reduction request, based on Section 22 Paragraph 1 Sentence 3 of the SGB II, setting a deadline, before heating costs can be reduced to what is considered reasonable. This order must specify a concrete amount to which the benefit recipient must reduce their costs.
If a job center does not meet these requirements, it is initially assumed that applicants can assert a claim for reimbursement of the actual heating costs (§ 22 para. 1 sentence 1 SGB II).
Source: Guiding Principles – Dr. Manfred Hammel, Caritas Association for Stuttgart e. V
2.4 – Social Court Magdeburg, decision of May 23, 2013 (file no.: S 23 AS 1142/13.ER):
Regarding the question of the appropriateness of heating costs for the 2012/2013 heating season for a privately owned home when the appropriateness guidelines of the municipal authority are exceeded
Guiding principles by attorney Michael Loewy
In the case of central hot water generation, the job center must assess the costs for hot water as an indeterminable component together with those for heating and cover them in an appropriate amount (§§ 20 para. 1 sentence 1 and 22 para. 1 sentence 1 SGB II).
A cost-reduction request based on Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) must clearly explain to an employable benefit recipient the expenses deemed reasonable by the SGB II agency and the consequences of failing to reduce costs. Furthermore, a transitional period must be granted until cost reduction through relocation or altered heating habits can reasonably be expected of the benefit recipient.
Source: Michael Loewy, specialist lawyer for social law
Full text of the decision here: anwaltskanzlei-loewy.de
2.5 – Social Court Aachen, Judgment of 30 July 2013 – S 11 AS 740/12
A recipient of benefits is not entitled to reimbursement of further training costs under Section 16 Paragraph 1 Sentence 2 Number 4 of the German Social Code, Book II (SGB II) in conjunction with Section 81 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III nF), if the further training is not "necessary." The question of necessity within the framework of the SGB II is to be guided by the objectives set out in Sections 1 and 3 of the SGB II.
According to Section 3 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for integration into employment can be provided insofar as they are necessary to prevent, eliminate, shorten, or reduce the need for assistance. However, necessity in this sense can only exist if successful integration can be predicted with sufficient certainty or is to be expected (see also Federal Social Court – BSG – Judgment of November 23, 2006 – B 11b AS 3/05 R).
According to the clear wording of the law, the granting of benefits is at the discretion of the authority. Against this background, the desired judgment ordering the Jobcenter (JC) to grant the requested training measures would require that the JC's discretion be reduced to "zero," meaning that any administrative decision other than granting the benefits would be considered an abuse of discretion (see Hamburg Higher Social Court judgment of March 15, 2012 – L 4 AS 199/11). However, no grounds have been presented, nor are any apparent, that would justify reducing discretion to zero (regarding the reduction of discretion to zero in the case of training measures, see Saxony Higher Social Court decision of October 26, 2012 – L 3 AS 678/12 B ER).
Source: socialcourtsability.de
Note:
The same result was reached by the Social Court of Aachen, judgment of January 8, 2013 – S 11 AS 165/12
2.6 – SG Stuttgart, Judgment of 30.11.2012, S 14 AS 738/12
The absence of a printer is not a reason for non-compliance with obligations arising from an integration agreement.
The lack of access to a printer does not constitute a valid reason for failing to comply with the obligation, stipulated in an integration agreement, to apply for four jobs per month.
Source: Press release from the Stuttgart Social Court dated August 7, 2013 – Current case law of the Stuttgart Social Court, published here: www.sg-stuttgart.de
2.7 – SG Stuttgart, Judgment of 15.05.2013, S 12 AS 5865/10
Basic income support providers do not cover storage costs
No entitlement to benefits for furniture storage exists if the current living space is so small that it is insufficient for the adequate accommodation of the beneficiary's personal belongings, but the furniture has already been stored for two years, there is no end in sight to the furniture storage, and neither proof of the value of the stored items nor of their condition can be provided.
Source: Press release from the Stuttgart Social Court dated August 7, 2013 – Current case law of the Stuttgart Social Court, published here: www.sg-stuttgart.de
2.8 – SG Stuttgart, decision of 30.07.2012, S 24 AS 3916/12 ER
The Greek man is entitled to ALG II (unemployment benefit II).
A foreigner who derives his right of residence solely from the purpose of seeking employment is not excluded from the benefits of basic income support for job seekers if he is covered by the scope of protection of the European Social Security Convention (ESC).
There are doubts as to whether the reservation against the application of the EFA to benefits under the SGB II, declared by the Federal Government only with effect from 19 December 2011 and without an enabling act, effectively excludes the nationals of the signatory states from receiving benefits.
Furthermore, there are doubts as to whether this reservation is in accordance with the Vienna Convention on the Law of Treaties, according to which a reservation may not be made if it is incompatible with the object and purpose of the treaty.
Source: Press release from the Stuttgart Social Court dated August 7, 2013 – Current case law of the Stuttgart Social Court, published here: www.sg-stuttgart.de
Note:
The same result was reached by the Cologne Social Court in its decision of June 4, 2013 – S 37 AS 1809/13 ER.
2.9 – Stuttgart Social Court, decision of 02.05.2013 – S 15 AS 2104/13 ER
No assumption of electricity debts in cases of abusive behavior by the person in need of assistance
A loan-based assumption of debt is not an option if the debt is based on abusive behavior by the person receiving assistance. This is generally the case if they deliberately fail to make their energy cost prepayments and their behavior suggests that they relied on, or even speculated upon, a loan-based assumption of the resulting debt by the benefit provider. In such a case, the hardship is being deliberately created at the expense of the benefit provider. This cannot be tolerated.
Source: Press release from the Stuttgart Social Court dated August 7, 2013 – Current case law of the Stuttgart Social Court, published here: www.sg-stuttgart.de
Note:
Similarly, the decision of the Higher Social Court of Saxony-Anhalt of August 31, 2011 – L 5 AS 328/11 B ER – reached the same conclusion regarding rent arrears; the decision of the Higher Social Court of Baden-Württemberg of March 13, 2013 – L 2 AS 842/13 ER-B – also applies to rent arrears.
3. Decisions of the social courts on basic income support for job seekers (SGB III)
3.1 – Stuttgart Social Court, decision of 23 November 2012, S 18 AL 5990/12 ER
Even during unfair dismissal proceedings, an unemployed person must be available for work
Even those who defend themselves against a dismissal issued by their employer with the aim of continued employment must make themselves available to the placement efforts of the Federal Employment Agency if they wish to receive unemployment benefits until the legality of the dismissal has been clarified.
If subjective availability is lacking, the need for legal protection is already lacking for an application for preliminary legal protection, since the applicant has a simpler way to obtain unemployment benefits from the employment agency, as he only has to inform them of his availability.
Source: Press release from the Stuttgart Social Court dated August 7, 2013 – Current case law of the Stuttgart Social Court, published here: www.sg-stuttgart.de
Note:
The same result was reached by the Stuttgart Social Court in its judgment of February 15, 2013, case number S 5 AL 4769/12.
3.2 – Social Court Berlin, Judgment of 05.07.2013 – S 70 AL 1989/11
No claim for reimbursement by the basic income support provider under SGB 2 as a secondarily liable benefit provider.
If the pre-financing bank is granted insolvency compensation for wages assigned to it, the SGB 2 benefit providers cannot have a claim for reimbursement due to the payment of unemployment benefit II to the assigning employees.
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Baden-Württemberg, Judgment of 18 July 2013 – L 7 SO 4642/12
No social assistance for the sign language course of the parents of a deaf girl – The parents can reasonably be expected to learn sign language from books or at the adult education center.
Parents of deaf children cannot demand that social welfare agencies cover the costs of learning sign language. While integration assistance benefits include instruction for the disabled child, they do not cover the financing of sign language courses for the parents.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Stuttgart Social Court, judgment of 14 May 2013, S 20 SO 7003/12
The annual membership fee of the Center for Social Support eV in the amount of 50 euros is not a contribution towards a death insurance policy within the meaning of Section 42 Sentence 1 No. 2 in conjunction with Section 33 Paragraph 2 SGB XII.
Membership fees for a death insurance policy do not constitute costs to be covered by the social welfare provider under Section 42 Sentence 1 No. 2 in conjunction with Section 33 Paragraph 2 of the German Social Code, Book XII (SGB XII), insofar as they are intended to cover only the costs of a funeral mass to be performed by a Muslim chaplain and the costs of repatriation and transport with an accompanying person to Turkey in the event of death.
Source: Press release from the Stuttgart Social Court dated August 7, 2013 – Current case law of the Stuttgart Social Court, published here: www.sg-stuttgart.de
6. Two-tier systems at employment agencies
Don't miss the following TV broadcast: Wed, 07/08/13 | 9:45 pm, ARD plusminus, more information here: www.daserste.de
7. Federal Constitutional Court, decision of 16 July 2013 – 1 BvR 3057/11
On the necessity of a judicial review procedure before filing a constitutional complaint
The Federal Constitutional Court has clarified in which cases a complaint regarding the right to be heard must be filed before a constitutional complaint is lodged with the court of last instance.
Source: juris The Legal Portal – News from August 7, 2013, published here: www.juris.de
8. Employment agencies: Free service hotline, notices made easier to understand
abstract
Many lawsuits against the job centers
In June 2013, nearly 200,000 appeals against decisions made by job centers were filed. Almost as many lawsuits were pending before the social courts. In total, around 400,000 decisions were therefore under review. Compared to November 2012, there was hardly any change. This is hardly surprising, as roughly the same number of new lawsuits and appeals are filed each month as are resolved. The appeals and lawsuits primarily challenge the termination of benefits. However, objections are also raised regarding how job centers calculate income or assets for basic income support, and how housing and heating costs are determined.
Source: juris – Employment agencies: Free service hotline, notices made easier to understand, read more here: www.juris.de
9. Bonn: Job center's unlawful and degrading data snooping is ended
Recipients of Hartz IV and social assistance in Bonn will no longer have to have their landlord fill out a rental certificate that directly reveals their receipt of social benefits, explained Martin Behrsing, social policy spokesperson.
Source: PR-Sozial, the press portal, news item from August 10, 2013, available here: www.elo-forum.net
10. The job center will come knocking on the door of those who are welfare cheats
Sigrid Müller, as department head, is responsible for field operations and administrative offenses at the Ludwigslust-Parchim job center. Anonymous reports – home visits.
“It is even considered an administrative offense if the customer does not inform us of changes in a timely manner,” explains Sigrid Müller.
The interesting article can be found here: www.svz.de
See also Thome Downloads: BA Practical Handbook for the Prosecution of Administrative Offenses under SGB II. The handbook is available here: www.harald-thome.de (pdf)
11. Different rent limits for adults and young people receiving Hartz IV benefits?
Quote: "In summary, it is not permissible to generally refer young Hartz IV recipients who move out with the assurance of the benefit provider to a lower standard of living or a cheaper rent than older Hartz IV recipients."
An article by attorney Felsmann, lawyer in Kiel – employment law – protection against dismissal – specialist lawyer for social law. The article can be read or printed here:
www.anwalt-kiel.com
Note:
Contrary opinion: Schleswig-Holstein Higher Social Court, decision of 09.10.2009 – L 11 B 465/09
12. Bernd Eckhardt from the Nuremberg Unemployment Center: SGB II Information
NEW: Income and assets – the modified “inflow theory” of the Federal Social Court (legal status 08/2013).
A critical examination of the legislation and case law regarding the crediting of income under the German Social Code, Book II (SGB II). Practical advice.
The document can be found at: www.sozialpaedagogische-beratung.de (pdf)
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
