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 67/12 R
If a member of a household receiving benefits loses their share of the accommodation costs due to a sanction, the remaining members of the household receiving benefits are to be granted higher accommodation costs, deviating from the usual division by head.
Source: juris.bundessocialgericht.de
Note:
See also: Sanctions against those under 25 – The problem of distributing housing costs in multi-person households receiving benefits, an article by Wersig in info also 2013, pp. 51 ff., 52). The article is reprinted here: www.info-also.nomos.de (pdf)
2. Decisions of the Federal Social Court of 17 October 2013 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 17 October 2013 – B 14 AS 70/12 R
The Federal Social Court (BSG) has declared the Berlin WAV (Vocational Assessment Procedure) invalid for recipients of benefits under the German Social Code, Book XII (SGB XII). In its ruling of October 17, 2013, the Federal Social Court declared the Berlin WAV invalid for recipients of benefits under the SGB XII, thus rejecting it in this area.
Source: An article by attorney Kay Füßlein, here: www.ra-fuesslein.de
2.2 – BSG, Judgment of 17 October 2013 – B 14 AS 38/12 R
One-off income may only be taken into account if this income was (still) available as a means to secure the subsistence minimum of the person in need during the months in question (cf. the case law of the Federal Social Court of 29 November 2012 – B 14 AS 33/12 R).
Source: Report No. 48/13 of the Federal Social Court (BSG) dated October 17, 2013, available here: 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 30 September 2013 – L 6 AS 433/13 B ER
The exclusion of entitlement under Section 7 Paragraph 1 Paragraph 2 of the German Social Code, Book II (SGB II) does not apply to the detriment of Union citizens due to the primacy of application of Article 70 in conjunction with Article 4 of Regulation (EC) 883/2004 and a primary law-compliant interpretation of Article 24 Paragraph 2 of Directive 2004/38/EC.
Source: socialcourtsability.de
3.2 – Bavarian State Social Court, decision of 24.09.2013 – L 16 AS 513/13 B ER
The request to submit bank statements for the last three months before the application is legally unobjectionable (cf. BSG, judgment of 19.02.2009 – B4 AS 10/08 R).
1. Even those who apply for benefits under the German Social Code, Book II (SGB II), bear the consequences of the lack of objective evidence if, after exhausting all available means of evidence, the eligibility requirements for benefits cannot be established (see Federal Social Court (BSG), judgment of 19 February 2009, B 4 AS 10/08 R).
2. This also applies in preliminary injunction proceedings. In particular, if applicants prevent the clarification of the facts due to insufficient cooperation and despite judicial instruction, a decision can be made on the basis of the allocation of the burden of proof without violating the requirement of effective legal protection under Article 19 Paragraph 4 of the Basic Law (see Federal Constitutional Court, decision of February 1, 2010, 1 BvR 20/10).
Source: socialcourtsability.de
Note:
Likewise – Bavarian State Social Court, decision of 06.06.2013 – L 8 AS 218/13 B ER
3.3 – Hamburg State Social Court, Judgment of 27 June 2013 – L 4 AS 118/10
To cover costs for cosmetic renovations, internet connection, household insurance and liability insurance.
1. The person in need of assistance is not entitled to reimbursement of the costs for cosmetic renovations to their apartment. While, in principle, the costs of routine cosmetic renovations can be covered as part of housing costs (see, regarding move-in renovations: Federal Social Court [BSG], judgment of December 16, 2008, case no.: B 4 AS 49/07 R; regarding move-out renovations: Federal Social Court [BSG], judgment of October 6, 2011, case no.: B 14 AS 66/11 R), reimbursement of the costs for cosmetic renovations is precluded because the corresponding clause in the lease agreement is invalid, and the landlord is therefore not legally obligated to carry out the cosmetic renovations. Accommodation costs are not to be covered by the benefit provider if the invalidity of the agreement is known or should be known, because accommodation costs based on a legally invalid agreement cannot and must not be permanently covered by public funds (BSG, judgment of 24 November 2011, file no.: B 14 AS 15/11 R).
2. He is also not entitled to reimbursement of the costs for his internet connection. These costs must be covered by his standard benefits.
3. Annual liability insurance premiums are also not covered. Separate coverage of liability insurance costs is not provided for by law. If the recipient nevertheless wishes to take out liability insurance, they must pay the premiums from their standard benefit. The provision of the standard benefit as a lump sum allows the recipient to decide for themselves how to use it. However, liability insurance premiums can be deducted from income.
4. Finally, the tenant has no right to a cost commitment for household insurance. There is no legal basis for this either. While the assumption of costs for household insurance required by the tenancy agreement can, in principle, be considered within the framework of housing and heating costs (see Hamburg Higher Social Court, judgment of August 9, 2012, case no.: L 4 AS 367/10), the tenant is not facing a serious demand from his landlord. This is because the tenancy agreement already stipulates that, in the event of non-compliance with household insurance, claims can be made against the tenant in the event of damage, but the tenancy remains unaffected.
Source: socialcourtsability.de
3.4 – State Social Court of Saxony-Anhalt, decision of 11 July 2013 – L 5 AS 472/11 legally binding
No entitlement to orthodontic treatment of the applicant's choice
Orthodontic treatment with particularly comfortable miniature brackets represents a service that goes beyond statutory health insurance and to which those entitled to benefits under the German Social Code, Book II (SGB II) are not entitled.
Source: Juris (www.juris.de)
Note:
North Rhine-Westphalia State Social Court, judgment of 09.08.2012 – L 6 AS 139/12 ZVW, appeal pending before the Federal Social Court under file number B 6 AS 6/13 R
There is no legal basis for covering the costs of supplementary treatment measures beyond the orthodontic treatment covered by statutory health insurance.
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Kassel, Judgment of 28.08.2013 – S 7 AS 973/10, The appeal is admitted.
The relevant date for the start of the prognosis period according to § 7 para. 4 sentence 3 no. 1 SGB II (six-month period) is not the day of admission to the therapy facility or hospital, but the day of the application for benefits under the SGB II at the job center.
Source: socialcourtsability.de
Note:
Dissenting opinion: Rhineland-Palatinate State Social Court, judgment of 18 December 2008, L 5 AS 31/08, North Rhine-Westphalia State Social Court, decision of 20 February 2008, L 7 B 274/07 AS
The decisive factor for the commencement of the period stipulated in Section 7 Paragraph 4 Sentence 3 No. 1 of the German Social Code, Book II (SGB II), is a prognosis decision that must be made from the time of admission to the inpatient facility.
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Bavarian State Social Court, Judgment of 29 August 2013 – L 8 SO 157/10
A lipid metabolism disorder, type IIb diabetes mellitus, an excessive fat content of the liver and hyperuricemia or gout do not require any additional needs due to costly nutrition.
1. Limiting the subject matter of the dispute to the application for recognition of additional needs due to costly nutrition is permissible in social assistance (regarding the separability of a claim for consideration of additional needs, see BSG, judgment of 10.11.2011, B 8 SO 12/10 R, judgment of the Senate of 29.04.2010, L 8 SO 77/08).
2. If an isolated application is made for the granting of additional needs due to costly nutrition, the SHT must, in principle, examine a revocation within the meaning of Section 44 SGB X or Section 48 SGB X; it is bound by a previous ruling (cf. BSG, judgment of 14.02.2013, B 14 AS 48/12 R).
3. If, on the same day, a separate decision is issued regarding the rejection of an additional need and a notice of permanent basic income support benefits is issued without mention of an additional need, the entire administrative action must be interpreted as two parallel regulations, even if the benefit notice states that the amount is to be understood as the total sum of all benefits under the German Social Code, Book XII (SGB XII) for the household.
4. A subsequent new rejection notice renders such an earlier notice moot (following BSG judgment of 02.02.2010, B 8 SO 21/08 R, judgment of the Senate of 09.08.2012, L 8 SO 206/10).
Source: socialcourtsability.de
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – Aachen Social Court, Judgment of 01.10.2013 – S 20 SO 98/13
If there is no objectively verifiable purpose for the assets in the current account for funeral expenses, they must be used to cover nursing home costs.
1. The applicant had not concluded a funeral pre-arrangement contract; nor had she otherwise designated assets for funeral pre-arrangements and separated them from her other assets in a way that was inviolable for her. The money – which, according to her authorized representative, was intended solely for funeral pre-arrangements – was held in her current account and could be used for any purpose. The designation of funds as "funeral pre-arrangements" was purely subjective. Such an investment is insufficient to establish, pursuant to Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII), a special hardship and a corresponding additional asset allowance under the aspect of funeral pre-arrangements.
2. The appropriateness of the amount of the funeral pre-arrangement allowance is not relevant to the decision here. In any case, funeral pre-arrangement contracts with an asset value of EUR 4,000.00 to EUR 6,000.00 (and more) are recognized by case law as further protected assets within the meaning of Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) ("hardship") (see, for example, Federal Social Court (BSG), judgment of March 18, 2008 – B 8/9b SO 9/06 R).
Source: socialcourtsability.de
Note:
See also – Thuringian Higher Social Court, judgment of 23 May 2012 – L 8 SO 85/11
The intended purpose must be objectively verifiable for the burial; a subjective intended purpose is not sufficient.
6.2 – Social Court Mannheim, judgment of May 7, 2013 (Case No.: S 9 SO 2403/12):
On the alternative determination of needs according to § 27a para. 4 SGB XII – Guiding principles by Dr. Manfred Hammel
1. A recipient of supplementary benefits granted in accordance with Sections 41 et seq. of the German Social Code, Book XII (SGB XII), who is permanently and fully incapacitated for work, chronically ill and severely disabled, may, due to his special medical situation, claim from the social welfare provider that his social welfare needs be assessed in accordance with Section 27a Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII), deviating from the standard needs prescribed by law in accordance with Section 28 of the German Social Code, Book XII (SGB XII).
2. This is justifiable precisely when the specific life situation of a disabled person in need deviates significantly and continuously from the standard case on which the typification inherent in the standard benefit rate is based, and a claim under health insurance law cannot be asserted pursuant to Section 34 of the German Social Code, Book V (SGB V).
3. In the case of persons who are dependent on public welfare benefits to cover their necessary living expenses, a social welfare office must, within the framework of a deviating needs assessment pursuant to Section 27a Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII), take into account the unavoidable and substantial "health expenses" – despite the prohibition on supplementing benefits stipulated in Section 52 Paragraph 1 Sentence 1 of the SGB XII.
For the full text of the decision: dejure.org
7. Administrative Court of Oldenburg, decision of September 5, 2013 (file no.: 7 B 5845/13):
Guiding principles of Dr. Manfred Hammel
A municipality responsible for providing accommodation to a homeless person may not evade this obligation by allowing the homeless person to travel on to another municipality by covering the costs of the journey, or by sending a non-German homeless person to their home country if the journey is not undertaken voluntarily.
Such "offers" are unlawful insofar as the regulatory authority uses them to order that the non-German homeless person no longer be admitted to the municipal homeless shelter. It is not permissible, regardless of whether the person is a member of the EU, to limit any measures taken by the police regarding homelessness to the assumption of repatriation costs to their country of origin.
Full text of the decision: dejure.org
8. Higher Regional Court of Celle, decision of September 25, 2013 (Case No.: 1 Ws 375/13):
Guiding principles of Dr. Manfred Hammel
The pocket money regulations in the prison laws of the federal states or in § 46 StVollzG are exhaustive.
1. These provisions do not provide for an increase in pocket money in the case of a prisoner's walking disability.
2. Section 30 paragraph 1 no. 2 of the German Social Code, Book XII (SGB XII) is not applicable here, because this provision requires the receipt of subsistence assistance (Sections 27 et seq. SGB XII).
3. In this context, there is neither an unintended regulatory gap nor an objectively unjustified unequal treatment between incarcerated and free people in need. The pocket money regulations are tailored to the specific situation of incarcerated people in need.
Full text of the decision: dejure.org
9. Job center must cover travel expenses for doctor's appointments in Frankfurt as a special benefit.
SOCIAL COURT: Ruling in favor of Hartz IV recipient regarding doctor's appointments in Frankfurt
A recipient of Hartz IV benefits successfully argued in an oral hearing at the Mainz Social Court that his travel expenses for necessary specialist appointments (therapy for torture victims) should be considered an "additional need" and paid by the job center.
Source: Allgemeine Zeitung Rhein Main Presse, October 17, 2013; the article can be found here: www.allgemeine-zeitung.de
Note:
More frequent trips to pick up an incarcerated son from prison for furlough may constitute an additional need under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II). (See Bavarian State Social Court, decision of July 10, 2012 – L 7 AS 963/10).
10. LSG Hessen, Judgment of 26.06.2013 – L 6 AL 186/10, Commentary by Attorney Stella Schicke, Plagemann Rechtsanwälte, Frankfurt aM
The enrollment of a student at a university establishes the presumption that the student cannot pursue any employment subject to social security contributions during his studies.
The assumption that a student can only engage in employment exempt from social security contributions is refuted if the student is newly enrolled and is objectively and subjectively available for job placement during the period between the start of the semester and the start of their mandatory courses. (Author's guidelines).
Source: From beck-fachdienst Sozialversicherungsrecht 20/2013 of October 11, 2012, here: beck-aktuell.beck.de,
for the full text of the decision: dejure.org
11. Uwe Berlit: Sanctions under the German Social Code, Book II (SGB II) – merely problematic or unconstitutional?
Sanctions under the German Social Code, Book II (SGB II) – merely problematic or unconstitutional? An article by Uwe Berlit, published in issue 05/2013 of info also, available here: www.info-also.nomos.de (pdf)
12. Prof. Dr. Reimund Schmidt-De Caluwe: Hartz IV for EU Foreigners – European Law Also Requires a Minimum Income.
The ruling by the Bavarian State Social Court (LSG) to grant Hartz IV benefits to an unemployed Italian had gone largely unnoticed by the public. Only when the North Rhine-Westphalia State Social Court (LSG NRW) made a similar decision last week in the case of a Romanian did the outcry become significant. However, the courts are ultimately simply acting in accordance with European and international legal obligations, argues Reimund Schmidt-De Caluwe.
Section 7, paragraph 1, sentence 2, number 2 of the German Social Code, Book II (SGB II) excludes foreigners from entitlement to Hartz IV benefits if their right of residence is solely based on the purpose of seeking employment. Two rulings by state social courts (LSG) now call this exclusion into question.
Read more: Legal Tribune Online, here: www.lto.de
13. Regarding TAZ: Social benefits for EU citizens – A ruling with a catch
The recent ruling on Hartz IV benefits for Romanians is by no means as generous as many believe. Their residency rights are at risk. Read the full article here: www.taz.de
14. Attorney Dr. Reinhard Marx: Residence and Asylum Law
Basic course, see article here: https://www.google.de
15. 165 Euro monthly wage – Job center sues company in the Spreewald
Press release from September 6, 2013: The Cottbus Labour Court – Senftenberg Chamber – informs – see the press release here: www.arbg-cottbus.brandenburg.de
16. Berlin Refugee Council: Social assistance, basic income support for job seekers and additional social assistance, basic income support for job seekers –
more information here: www.fluechtlingsrat-berlin.de
17. Further legal texts and commentaries on immigration and asylum law can
be found here: www.fluechtlingsrat-berlin.de
18. German Red Cross and Caritas: Illegal Residence Permit – Advisory Handbook, 2013
Here's the link: https://www.drk-wb.de
The Aachen Social Court has revised its stance on the issue of housing costs and declared that recourse to Section 12 of the Housing Benefit Act (WoGG) no longer appears appropriate – the Social Court reprimanded the job center regarding housing costs.
In the present case, the Social Court criticized in particular that the job center had consistently used the Aachen city rent index to calculate the appropriateness of housing costs for Hartz IV recipients.
After the latest rent index, which would have yielded higher values, was presented, the job center, acting on instructions from the Aachen city region, deviated from this practice and instead used the housing benefit table for Aachen. "Such a course of action is completely incomprehensible, even for recipients of benefits under the German Social Code, Book II (SGB II)," criticized the presiding judge of the 11th Chamber of the Aachen Social Court. Read the full article here : www.aachener-nachrichten.de
See also – Thomé Newsletter of September 25, 2013, point 6, further details here: www.harald-thome.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
