1. Decisions of the Federal Social Court of 23 May 2013 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 23.05.2013 – B 4 AS 67/11 R
Husband must also provide for stepchildren – men who live with an unemployed partner must effectively also provide for her children.
In the case of a minor child living in a stepfamily, as here, the legal bond established by the marriage between the parent and stepparent is sufficient grounds for the legislator's general assumption that the increased parental responsibility of one spouse towards their minor child, and the stepparent's knowledge of this fact, will from the outset form the basis of the partners' cohabitation and the structure of the marriage (e.g., regarding the distribution of childcare and employment). Therefore, when considering the partner's income for the child's benefit, it is not necessary to separately determine and establish in each individual case whether, and if so, to what extent, the spouse has a "will to support" the child within the meaning of Section 7 Paragraph 3 Number 3 Letter c of the German Social Code, Book II (SGB II).
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of 4 June 2013 on employment promotion (SGB III)
2.1 – BSG, Judgment of 4 June 2013 – B 11 AL 8/12 R
The provision of a sign language interpreter in vocational school lessons for a disabled person falls under the jurisdiction of the Federal Employment Agency as other assistance within the framework of services for participation in working life.
Source: juris.bundessocialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Hessian State Social Court, Judgment of 20.09.2013 – L 7 AS 474/13 -, The appeal on points of law is admitted.
Greek citizens are entitled to ALG II (unemployment benefit II).
The exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) does not apply to Union citizens because it conflicts with Regulation (EC) 883/2004 (see also Decision of 12 February 2013 – L 7 AS 786/12 B ER).
Source: socialcourtsability.de
Note:
Similarly – LSG Hessen, decision of 18 December 2012 -L 7 AS 624/12 B ER, concerning the comparable case of a Union citizen with Romanian nationality.
3.2 – LSG NRW, Judgment of October 10, 2013 – L 19 AS 129/13 –, The appeal was granted.
Hartz IV entitlement for Romanian migrants – Long period of unsuccessful job searching justifies entitlement
Romanian nationals who, after a prolonged and objectively hopeless job search, continue to reside habitually in the federal territory are entitled to ALG 2 (unemployment benefit II).
Employable EU citizens who have a right of residence for reasons other than job seeking are not subject to the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II). This also applies to EU citizens without a right of residence within the meaning of the EU's freedom of movement rights.
Source: Press release from the Higher Social Court of North Rhine-Westphalia (LSG NRW) dated October 10, 2013, available here: www.justiz.nrw.de
Note:
See the decisions of the 19th Senate of the North Rhine-Westphalia State Social Court (LSG NRW) of August 22, 2013 – L 19 AS 766/13 B ER (legally binding) and of July 19, 2013 – L 19 AS 942/13 B ER, published here: sozialgerichtsbarkeit.de; See also: Hartz IV for Romanian family. Interior Minister Friedrich warns of more poverty refugees after court ruling, here: www.spiegel.de
3.3 – North Rhine-Westphalia State Social Court, judgment of 28 February 2013 – L 7 AS 506/11, appeal pending before the Federal Social Court under file number: B 14 AS 48/13 R.
A benefit recipient (LB) is entitled to have a special assessment for the renovation of 4 balconies, decided by a majority vote of the homeowners' association, covered as a one-time expense for housing costs pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II).
1. The fact that the balconies affected by the renovation do not belong to the recipient's apartment or cannot be used by them does not preclude their consideration as housing costs. Case law recognizes that a repair lump sum owed under Section 16 Paragraph 2 of the German Condominium Act (WEG) is considered a housing cost under Section 22 Paragraph 2 of the German Social Code, Book II (SGB II, old version) (Higher Social Court of Rhineland-Palatinate, judgment of July 23, 2009, case no.: L 5 AS 111/09; Higher Social Court of Baden-Württemberg, judgment of May 9, 2006, case no.: L 10 AS 102/06; pending in Federal Social Court, judgment of August 22, 2012, case no.: B 14 AS 1/12 R).
2. Value-enhancing renovation measures (here, balcony renovation) are generally not covered by Section 22 of the German Social Code, Book II (SGB II), because it is not the purpose of transfer payments financed from public tax revenue under SGB II or SGB XII to finance basic renovation and maintenance work and thus enable the recipient to increase their assets, which they could also realize after potentially ceasing to receive benefits. Neither Section 2 Paragraph 3 Sentence 1 No. 4 of the SGB II nor Article 14 of the German Basic Law (GG) establishes an entitlement to benefits for the maintenance or renovation of a property.
3. However, this principle must be modified in the case of necessary maintenance and renovation work. The increase in value usually associated with a necessary renovation on a larger scale is merely a consequence of the necessary maintenance and does not preclude its eligibility for consideration.
Source: socialcourtsability.de
3.4 – Hamburg State Social Court, Judgment of 12 September 2013 – L 4 AS 130/13
Regarding the consideration of repayment amounts for home ownership when the loan was taken out not for acquisition, but for the purpose of renovating the property.
1. No assumption of mortgage payments by a homeowner, because the repayment of the loan taken out by the benefit recipients will take a considerable amount of time; the debts are not yet largely paid off. The aspect of asset accumulation applies to the mortgage payments in full, because the benefit recipients profit from any repayment through the acquisition of unencumbered property (Federal Social Court, Judgment of June 18, 2008, B 14/11b AS 67/06 R).
2. Benefits under the German Social Code, Book II (SGB II), are limited to securing current subsistence and are not intended to be used for asset accumulation. Exceptions to this principle, given the strong protection of the basic need for housing under SGB II, are only permissible in exceptional cases concerning the preservation of home ownership whose financing is already largely complete at the time basic income support is received (see judgments of the Federal Social Court (BSG) of July 7, 2011, B 14 AS 79/10 R, and of February 16, 2012, B 14 AS 14/11 R; judgment of the Hamburg Higher Social Court (LSG) of September 8, 2011, L 5 AS 4/09).
3. It is also irrelevant that the loan was taken out not for purchase but for the purpose of renovating the property. Not only did this situation – apart from the fact that the amount of the loan suggests more extensive renovations – occur many years ago and therefore have nothing to do with maintenance while receiving basic income support, but consideration of the corresponding expenses would only have been possible insofar as they did not lead to an improvement in the standard of the owner-occupied home (Federal Social Court, Judgment of March 3, 2009, B 4 AS 38/08 R). However, this is not the case here, as the renovations involved a complete overhaul of the heating system, a new, thermally insulated roof, the installation of thermally insulated windows and doors, etc. (see also Federal Social Court, Judgment of August 22, 2012, B 14 AS 1/12 R).
Source: socialcourtsability.de
3.5 – Baden-Württemberg State Social Court, Judgment of 26 September 2013 – L 7 AS 1121/13
The costs for replacing the heating system will not be covered if functional individual oil-fired heaters are already in place, as these are not unavoidable expenses for maintenance and repair within the meaning of Section 22 Paragraph 2 of the German Social Code, Book II (SGB II).
1. The necessity of maintenance and repair measures within the meaning of Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) is triggered by the existence or imminent threat of structural or other defects that currently impair the substance or habitability of the property (here denied).
2. It was left open whether the paid-out building society savings balance, which significantly exceeded the asset allowance relevant for the person in need of assistance (§ 12 para. 2 sentence 1 nos. 1 and 4 SGB II), constitutes assets to be taken into account (§§ 7 para. 1 sentence 1 no. 3, 9 para. 1, 12 para. 1 SGB II) or protected assets that must be used – appropriately – for the maintenance of her home ownership (§ 12 para. 3 no. 5 SGB II).
Source: socialcourtsability.de
3.6 – Lower Saxony-Bremen State Social Court, Judgment of 29 May 2013 – L 13 AS 268/11
Regarding the concept of partner within the meaning of Section 7 Paragraph 3 No. 3 c) SGB II
1. According to common usage, a partnership is characterized by its members acknowledging each other in the sense that the other is "the partner" or "the girlfriend or boyfriend", that they are "together" or live in a relationship, or the like; the essential element underlying all these terms is the mutual acknowledgment, whereby it is not decisive what the parties involved state to third parties or even authorities when asked, but rather how their relationship to each other is actually structured, in the sense of an objective element of the offense.
2. The existence of a “will to assume responsibility and stand by” within the meaning of Section 7 Paragraph 3 No. 3c SGB II and the presumption rule of Section 7 Paragraph 3a SGB II is an element that only needs to be examined in established partnerships.
Source: socialcourtsability.de
3.7 – Lower Saxony-Bremen State Social Court, 13th Senate, Judgment of 28 August 2013, L 13 AS 301/11
Reimbursement of expenses pursuant to Section 63 Paragraph 1 Sentence 1 SGB X
If the objection was successful, the right to reimbursement of costs exists. This right arises not only if the objection is fully successful, but – as is evident from the introductory word "insofar as" in Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) – also in the case of partial success.
To determine the success rate, the objective pursued with the objection must be compared with the extent of the success and the two must be assessed in relation to each other. This ratio of success to failure is then to be translated into a cost ratio (see Federal Social Court judgment of June 12, 2013 – B 14 AS 68/12 R –).
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Braunschweig Social Court, Judgment of 08.08.2013 – S 17 AS 4125/12
Jobcenter must cover the costs of tutoring in English for dyslexia.
Section 28 paragraph 5 of the German Social Code, Book II (SGB II) applies to pupils who require learning support as a result of dyslexia (Lower Saxony-Bremen Social Court, decision of 28.02.2012, L 7 AS 43/12 B ER).
Source: socialcourtsability.de
4.2 – Social Court Kassel, Judgment of 28.08.2013 – S 6 AS 711/12
1. Special circumstances which, according to the case law of the Federal Social Court (BSG, judgment of 03.03.2009, B 4 AS 50/07 R; judgment of 02.07.2009, B 14 AS 54/08 R), justify the granting of half the additional needs allowance due to single parenting, exist if divorced and separated parents alternate in the care and upbringing of their shared minor child in longer intervals of at least one week and share the resulting costs approximately equally.
2. The general principle of equality under Article 3 Paragraph 1 of the Basic Law does not give rise to a claim to extend the additional needs allowance for single parents to other constellations of a so-called alternating custody model with shorter intervals.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Baden-Württemberg State Social Court, Judgment of 18 September 2013 – L 2 SO 404/13
Social welfare providers are not obligated to grant additional benefits for the disability marker "G," as it is insufficient for an application to have been submitted without a decision or official document yet being issued. Retroactive benefits are also not possible in these cases.
1. Even after the amendment of Section 30 Paragraph 1 No. 2 of the German Social Code, Book XII (SGB XII) by the Act Amending the Twelfth Book of the German Social Code and Other Acts of December 2, 2006 (Federal Law Gazette I 2670), the legal situation has not changed as of December 7, 2006, in such a way that the decisive factor is now the declaratory effect of the compensation for disadvantages (G) or the existence of its prerequisites for claiming the additional needs allowance.
2. The legal situation has changed from 07.2006 only insofar as now not only an identity card, but also the – usually issued earlier – decision of the competent authority is sufficient to prove the determination of the disability symbol G.
3. According to the clear wording of the law, a corresponding decision must have been issued by the authority responsible under Section 69 Paragraph 4 of the German Social Code, Book IX (SGB IX), or the identification document must be available to justify the additional needs.
4. Furthermore, it is insufficient if only an application for the "G" disability marker has been submitted, but no decision or identification card has yet been issued. Retroactive granting of the additional allowance is not possible in these cases.
Source: socialcourtsability.de
Note:
See BSG, judgment of 10 November 2011, B 8 SO 12/10 R
Until December 7, 2006, there was no entitlement to a lump-sum additional allowance due to disability, as long as the recipient of assistance did not possess a severely disabled person's identity card with the symbol "G".
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – Social Court Dortmund, Judgment of 20 September 2013 – S 41 SO 132/12
Section 30 Paragraph 7 of the German Social Code, Book XII (SGB XII) also allows the social welfare agency to cover one-off additional claims for hot water costs (here caused by an instantaneous water heater) – such as the additional claim by the electricity supplier against the person in need of assistance (HB).
1. In the case of central hot water supply, it is generally accepted that actual one-off and ongoing financial expenses for heating and hot water preparation – monthly advance payments/installments or a subsequent payment calculated after the end of the heating season – constitute a need of a recipient of assistance to be taken into account in the month in which they are due, on the basis of Section 35 Paragraph 4 Sentence 1 of the German Social Code, Book XII (see Higher Social Court of North Rhine-Westphalia, judgment of April 19, 2010, file number L 20 SO 18/09).
2. Regarding the additional needs allowance pursuant to Section 30 Paragraph 7 of the German Social Code, Book XII (SGB XII) – which, in the case of solely decentralized hot water supply, replaces Section 35 Paragraph 4 of the SGB XII with regard to the costs of hot water preparation – nothing different can apply due to the constitutionally mandated equal treatment of aid recipients with centralized and decentralized hot water preparation (Article 3 Paragraph 1 of the Basic Law – GG –) (cf. Higher Social Court of North Rhine-Westphalia, decision of May 28, 2013, file no. L 9 AS 540/13 B, concerning the relationship between Section 21 Paragraph 7 and Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II)).
3. However, HB could not demonstrate a specific need within the meaning of Section 30 Paragraph 7 Sentence 2 No. 5 of the German Social Code, Book XII (SGB XII), as a prerequisite for granting an additional allowance exceeding the lump sum provided for in Sentence 2 No. 1. A "specific need" within the meaning of the provision can only refer to a (higher) need for hot water or costs for hot water preparation that cannot be covered by the lump sum provided for in Sentence 2 No. 1. Given HB's extremely economical consumption habits, the existence of such a specific need appears doubtful.
4. Furthermore, the amount of the additional needs allowance is based on the case law of the Federal Social Court (BSG) on the law applicable until December 31, 2010 (see, for example, judgment of February 27, 2008, file no. B 14/11b AS 15/07 R), according to which a deduction of 30% of the consumption costs for household electricity included in the applicable standard rate was to be made from the costs for accommodation and heating for benefit recipients who receive their hot water via a central hot water supply (see Higher Social Court of North Rhine-Westphalia, decision of May 28, 2013, file no. L 9 AS 540/13 B). Even today, it can be demonstrated that in decentralized hot water generation, approximately 30% of the electricity used is for hot water preparation (Explanation of the exclusion of mediation to the regulatory proposal for the draft law on the determination of standard needs and the amendment of the Second and Twelfth Books of the Social Code, cited from the TuWas unemployment project (ed.), Accommodation and heating costs according to the SGB II, pp. 70 et seq.).
5. Section 27a Paragraph 4 Sentence 1 Alternative 2 of the German Social Code, Book XII (SGB XII) could also serve as a legal basis for the asserted claim. This is because, due to the lack of a metering device, it cannot be determined whether the costs arose from the consumption of electricity for hot water preparation or from the consumption of household energy. If there is an additional need for household electricity to be financed from the standard allowance, a deviating determination of need is generally possible under the conditions of Section 27a Paragraph 4 Sentence 1 Alternative 2 of the SGB XII. According to this provision, the individual need is determined differently from the standard allowance in individual cases if a need (...) unavoidably deviates significantly in amount from an average need. However, there are no indications of circumstances that could justify an unavoidably significant deviation in amount from the average electricity need of the recipient – such as the use of energy-intensive medical devices – nor are any apparent.
7. Social Court Munich, Judgment of 14.08.2013 – S 32 AS 3673/10 (Law firm Baumann Rechtsanwälte: Judicial Decisions): Social Court Munich overturns the refusal of funding by the district of Freising for debt counselling and recognizes the entitlement to funding in principle.
Dr. Manfred Hammel:
Section 17 Paragraph 2 of the German Social Code, Book II (SGB II) and Section 5 Paragraph 3 Sentence 2 of the German Social Code, Book XII (SGB XII) do not establish a direct entitlement for a non-profit welfare organization to receive support provided by a public authority.
A social welfare agency can only be required to make a legally sound discretionary decision regarding the entitlement, both in principle and in amount.
The assessment of the discretion afforded to a public authority in the allocation of funding must be guided primarily by the principle of equal treatment enshrined in Article 3 Paragraph 1 of the German Basic Law (GG).
To ensure equal opportunities, a transparent and objectively justified selection process must always be conducted.
A county's rejection decision, stating that the need for debt counselling (Section 16a No. 2 SGB II) is already met within its jurisdiction, must be based on a comprehensive needs assessment. Otherwise, there is an unlawful abuse of discretion.
A county can only justify the complete exclusion of any additional independent provider from funding for services under Section 16a No. 2 of the German Social Code, Book II (SGB II) or Section 11 Paragraph 5 of the German Social Code, Book XII (SGB XII), on the grounds of meeting demand, if it deems that further debt counseling services within its jurisdiction are entirely superfluous.
When making a funding decision, a public authority must always verify the professional suitability of the applying independent provider with regard to the long-term vocational integration of those seeking assistance or overcoming the life situation that necessitates the receipt of benefits to secure their livelihood (e.g., the number and qualifications of the counseling centers, the networking of the debt counseling service with other counseling centers).
Source: www.baumann-rechtsanwaelte.de
8. Bavarian State Social Court judgment of June 19, 2013 – L 16 AS 847/12 – Appeal pending before the Federal Social Court, file number: B 14 AS 51/13
EU citizens are entitled to Hartz IV
EU citizens who come to Germany solely for the purpose of seeking employment are not entitled to Hartz IV benefits under the German Social Code, Book II (SGB II). The Bavarian State Social Court ruled this exclusion contrary to European law and awarded unemployment benefit II to an Italian citizen. To establish a uniform legal practice, the Federal Social Court in Kassel must now decide the matter.
Press release from the Bavarian State Social Court dated October 11, 2013: https://sozialgerichtsbarkeit.de
Note:
Full text of the decision here: https://sozialgerichtsbarkeit.de; Note on: LSG Munich 16th Senate, Judgment of 19 June 2013 – L 16 AS 847/12
Author: Constanze Rogge, Research Associate at the German Association for Public and Private Welfare (Deutscher Verein für öffentliche und private Fürsorge eV), Publication date: October 4, 2013, published in Juris here: www.juris.de
9. SG Kiel, decision of 10.10.2013, S 30 AS 337/13 ER
ALG II instead of BAföG
Unemployment benefit II for students excluded from BAföG – An article by attorney Helge Hildebrandt
Students who do not live with their parents but could reach a suitable educational institution from their parents' home and are therefore ineligible for BAföG (federal student aid) can apply for ALG II (unemployment benefit II). They do not need to live in their parents' household to qualify. This was decided today by the Kiel Social Court. More information and the judgment as a PDF can be found here: sozialberatung-kiel.de
10. Dorothee Frings: Social benefits for EU citizens according to Regulation (EC) 883/2004 (March 2012)
Frings_Sozialleistungen_883-2004.pdf (181 KB) here: www.fluechtlingsinfo-berlin.de (pdf)
Refugee information Berlin (referring to Regulation (EU) No 883/2004) can be found here: https://www.google.de
PPV contribution RBK SGB II for Unionsburg lawyer Eva Steffen_05.2012.pdf (394 KB) here: auslaender-asyl.dav.de (pdf)
11. KOS: Working aid “Long-term sick employees” for works councils/staff councils
The third issue of our newsletter "Quite Practical" is a special edition on the topic of "How to Deal with Long-Term Sick Employees?". This guide aims to support works councils and staff representatives in approaching employees with long-term illnesses. It is important that the sick employees themselves take an active role in clarifying their situation and seeking rehabilitation. The guide explains step by step what needs to be done.
Newsletter “legally practical” No. 3 [PDF] can be found here: www.erwerbslos.de (pdf)
Source: Coordination Office of Trade Union Unemployment Groups, here: www.erwerbslos.de
12. Expert opinions submitted by the Paritätische Wohlfahrtsverband (Parity Welfare Association) to the Federal Constitutional Court regarding the constitutionality of the standard benefit rates.
The Paritätische Wohlfahrtsverband has submitted two opinions to the Federal Constitutional Court concerning current pending proceedings regarding the calculation of the standard benefit rates and the needs for education and participation.
Here: The Paritätische Gesamtverband – we are making a difference. Expert opinions submitted by the Paritätische to the Federal Constitutional Court regarding the constitutionality of the standard rates can be found here: www.der-paritaetische.de
Sat:
Thomé Newsletter from October 6, 2013 and October 13, 2013 here: www.tacheles-sozialhilfe.de
13. Here's another tip for everyone who is just starting to deal with unemployment and Hartz IV (basic income support for job seekers under SGB II):
ver.di offers social counseling, which can be found here: mittelhessen.verdi.de
14. People on Hartz IV die five years earlier – Study:
People who are poor die on average five years earlier. Scientists at the Max Planck Institute compared the life expectancy of rich and poor people in Germany. The results revealed some significant differences.
Source and full text here: www.heilpraxisnet.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
