1. Decisions of the Federal Social Court of September 10, 2013 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of September 10, 2013 – B 4 AS 77/12 R
Guiding principles
BSG confirms the coherent concept of the basic security provider according to SGB II for the city of “Munich”. When checking the job center's reference rent, an apartment size for single people in Munich of 50 square meters and only apartments of at least simple and not the simplest standards were correctly taken into account.
The criteria for a coherent concept specified by the BSG were observed. By using the data from the Munich Rent Index 2007, data collection is limited to a specific area (here: the city of Munich) and data is collected across the entire city area. There is also no objection to the fact that by relying on the data from the qualified rent index, only those apartments were taken into account for which the rent was newly agreed or changed in the last four years and living space was not taken into account for which the rent level was set by law or has been determined in connection with a funding commitment.
It can be assumed that a cost reduction request within the meaning of Section 22 Paragraph 1 Sentence 3 SGB II is valid if the job center has specified a gross rent as the reference rent (cf. BSG judgment of October 19, 2010 - B 14 AS 50/10 R; see also BSG Judgment of August 22, 2012 – B 14 AS 13/12 R).
It is not harmful that the JC changed the reasonableness limit in the course of the legal proceedings. On the one hand, this is the result of the disputes between those involved in the social justice courts and, on the other hand, the letter from the basic security provider about the inappropriateness of the accommodation costs and the request to reduce costs is simply an information letter with an explanation and warning function. If the recipient of the benefit exceeds the assessment made by the basic security provider If the appropriateness of the costs is not applicable or relevant, the dispute must be resolved on the question of which KdU are appropriate. In this respect, the request to reduce costs from the basic security provider merely represents an “offer” to enter into a dialogue about the appropriate KdU.
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of June 12, 2013 on basic security for job seekers (SGB II)
2.1 - BSG, judgment of June 12, 2013 - B 14 AS 50/12 R
Guiding principles
A minor child is entitled to social benefit for the calendar days in which he or she stays in the household of the separated parent for more than twelve hours (temporary community of need) even if, as a member of the community of need with the other parent, he or she has already received social benefit for these days.
Since the communities of need are not identical in the case of a child's change of residence due to contact reasons, these are two claims that can have different levels and are mutually exclusive in terms of time.
Deductions for needs that cannot be covered regularly or even typically in one of the communities of need (clothing, household appliances, etc.) are not possible (BSG judgment of July 2, 2009 - B 14 AS 75/08 R).
This also applies to the situation in which the child is in need of help in both households of his separated parents within the meaning of SGB II. The standard benefit covers the needs for regular living expenses; Overall, however, even with changing stays, there are claims to standard benefits for no more than 30 days. If it can be proven that one of the households has ongoing higher needs due to the child's changing stays, which are not covered by priority maintenance payments, then in individual cases an additional need in accordance with Section 21 Paragraph 6 SGB II can be considered with regard to such needs.
If a child regularly lives in two communities, the needs in one community do not match the needs in the other community. This is a consequence of the regulations in Section 9 Paragraph 2 Sentences 2 and 3 SGB II, according to which the respective needs of a member of the community of needs can only be determined depending on the needs of the other members of the community of needs (most recently judgment of the Senate of April 16, 2013 - B 14 AS 71/12 R).
Payments made by the mother to the child due to stays in the community of needs with the father would, like other donations from third parties, be taken into account as income in accordance with the principles of Section 9 Paragraph 1 in conjunction with Section 11 SGB II (not ascertainable here). The child benefit granted for the child is not to be deducted as the child's income from his or her needs if the father, who is not also entitled to child benefit, is temporarily in need of the child.
Source: juris.bundessocialgericht.de
3. Decisions of the state social courts on basic security for job seekers (SGB II)
3.1 - Berlin-Brandenburg State Social Court, decision of October 11, 2013 - L 29 AS 2314/13 B ER legally binding
Guiding principle
Romanian citizens are excluded from ALG II (cf. current LSG Berlin, decision of October 14, 2013 - L 29 AS 2128/13 B ER, on the exclusion of benefits for Latvian citizens).
Source: socialcourtsability.de
3.2 - Berlin-Brandenburg State Social Court, decision of October 14, 2013 - L 29 AS 2128/13 B ER legally binding
Guidelines
Section 7 Paragraph 1 Sentence 2 No. 2 SGB II applies to Latvian citizens.
The adjudicating Senate has decided in consistent case law that it cannot determine that this regulation is contrary to European law.
Source: socialcourtsability.de
Note:
Likewise - LSG Berlin-Brandenburg, decision of September 27, 2013 - L 29 AS 2328/13 B ER, (on the exclusion of benefits for Romanian citizens).
3.3 - State Social Court of Saxony-Anhalt, decision of October 29, 2013 - L 5 AS 644/12 B legally binding
Principles
The amount of standard benefits and social benefits is not unconstitutional.
At EUR 364/month, the standard benefit for the benefit recipient is well above the limit drawn by the BVerfG of the obvious undercoverage of the humane minimum subsistence level.
The determination of the standard requirements from January 1, 2011 meets the requirements of the BVerfG in the judgment of February 9, 2010 (also: BSG, judgments of July 12, 2012, B 14 AS 189/11 R, B 14 AS 153/11 R ; judgments of March 28, 2013, B 4 AS 47/12 R, B 4 AS 12/12 R for single adults and children under 6 years of age).
The determination of social benefits for the 6-year-old child is also constitutional. The choice of three age groups for children is not objectionable (for the grading of the actual costs according to age groups, see for example Münnich/Krebs: “Expenditures for children in Germany”, in: Wirtschaft und Statisitk 2002, 1080 f., also: BSG, Judgment of March 28, 2013, B 4 AS 12/12 R).
Source: socialcourtsability.de
Note:
This also applies to single adults: State Social Court of Saxony-Anhalt, decision of March 15, 2013 - L 2 AS 606/12 B.
3.4 - State Social Court of Saxony-Anhalt, judgment of August 28, 2013 - L 5 AS 191/11 legally binding
Principles
The pensions of the husband of the benefit recipient (LB) were to be taken into account as the income of the LB, provided that he did not need them to cover his own needs (BSG , judgment of May 16, 2007, B 11b AS 27/06 R). A pension from the statutory pension and statutory accident insurance must be credited in full as income in accordance with Section 11 Paragraph 1 Sentence 1 SGB II. There is no privilege in accordance with Section 11 Paragraph 3 SGB II.
In principle, there is no objection to the adjustment of the pension income of the LB's husband.
Initially, a fictitious need according to SGB II had to be deducted from this (BSG, judgment of September 19, 2008, B 14/7b AS 10/07 R). Furthermore, the actual proportional KdU attributable to him had to be taken into account.
In addition, the flat rate amount of EUR 30/month was to be deducted in accordance with Section 6 Paragraph 1 Number 1 of the Ordinance on the Calculation of Income and the Non-Consideration of Income and Assets in Unemployment Benefit II/Social Benefit (ALG II-V). Double consideration of two types of income is not possible (BSG, judgment of February 18, 2010, B 14 AS 86/08R).
Source: socialcourtsability.de
3.5 – Bavarian State Social Court, decision of October 7th, 2013 – L 7 AS 644/13 B ER
Principles of Dr.
Manfred Hammel If it is not possible to realistically measure the shares of heating electricity (Section 22 Paragraph 1 Sentence 1 SGB II) and household electricity (Section 20 Paragraph 1 Sentence 1 SGB II), it is justifiable to rely on the individual quantified total expenditure of a community of needs for electricity, the proportion that is included in the standard requirement for household electricity must be deducted (see Section 5 Paragraph 1 of the Standard Demand Determination Act, there Department 4: “Housing, energy and housing maintenance”, No. 18: Electricity, tenant households).
3.6 - Saxon State Social Court, decision of October 21, 2013 - L 7 AS 1144/13 B ER
Guidelines
on the entitlement of Czech citizens to benefits according to SGB II.
Whether even a very minor job of just three hours per week is sufficient to trigger the applicability of European law norms and to justify claims under European law freedom of movement rights cannot be conclusively answered in the present case (cleaner for the church community).
Although the requirements for receiving benefits are questionable, benefits in accordance with SGB II must initially be granted in the short term, as these are benefits that secure one's existence (see also LSG Niedersachsen-Bremen, decision of September 9, 2013 - L 13 AS 260/13 B HE).
Source: socialcourtsability.de
3.7 - Saxon State Social Court, decision of October 17, 2013 - L 3 AS 18/12 B PKH
Principles
of cancellation and reimbursement notice in the event of unauthorized absence abroad
Due to unauthorized absence, benefits already granted under SGB II must be reimbursed by the benefit recipient if the person in need merely claims that it was not possible to return from abroad due to illness. Because an illness does not necessarily mean that you are unable to travel (Sächs. LSG, decision of September 14, 2012 - L 3 AS 8/12 NZB).
If a service provider incorrectly refers to Sections 45 or 48 of SGB X or Section 50 of SGB which has no effect on bound decisions.
Source: socialcourtsability.de
Note:
See - LSG Baden-Württemberg, judgment of October 22, 2013 - L 13 AS 4804/12 - notice of cancellation and reimbursement in the event of an unauthorized stay abroad.
3.8 - Saxon State Social Court, judgment of October 17, 2013 - L 2 AS 1082/11 - The appeal is permitted.
Guiding principles
on the application of Section 11 Paragraph 3 SGB II new version to the approval period beginning on April 1, 2011 when a one-off income is received - inheritance in 2010 - parts of the inherited inheritance that still exist are assets after the end of the crediting.
If the inheritance was divided 8 months before the new regulation of Section 11 Paragraph 3 SGB II came into force, a division beyond six months is expressly excluded according to the legal situation in force from April 1, 2011. This means that there is no longer any legal basis for offsetting income from more than six months ago and the inheritance is not creditable income.
There is no different regulation or transitional regulation for an incomplete distribution of one-off income that began before April 1, 2011. A transitional regulation on this question is not contained in Section 77 SGB II.
After the end of the crediting, any remaining parts of the amount received are assets that may need to be used to cover living expenses. After the credit was taken into account, an amount of EUR 1,805.48 was to be assumed as assets.
Source: socialcourtsability.de
4. Decisions of the social courts on basic security for job seekers (SGB II)
4.1 - Aachen Social Court, judgment of September 30, 2013 - S 5 AS 603/13, appeal pending at the LSG NRW under the case number L 19 AS 2040/13
Guidelines
If the unemployed do not show up at the registration appointment, the employment agency has a blocking period of a week, the unemployed person may not be sanctioned again by the job center for failing to register.
What is important is that the provision of Section 31 Paragraph 2 No. 3 SGB II does not apply to a blocking period determined by the employment agency in the event of failure to report.
The scope of application of Section 31 Paragraph 2 No. 3 SGB II is to be teleologically reduced to Nos. 1 to 5 of Section 159 Paragraph 1 Sentence 1, 2 SGB III and Section 161 SGB III. It is unclear whether the defendant is not already obliged to refrain from a reduction based on the technical information from the Federal Employment Agency on Sections 31, 31a and 31b SGB II, Section 31.26 (as of March 20, 2013).
It can also remain unclear whether the defendant, as an approved municipal provider, is bound to instructions from the Federal Employment Agency, at least - as here - with regard to the reduction of benefits from federal funds.
Source: socialcourtsability.de
4.2 – Aachen Social Court, decision of September 18, 2013 – S 11 AS 868/13 ER
Guidelines
SG Aachen is revising its stance on the subject of KdU and declares that recourse to Section 12 WoGG no longer appears appropriate
SG Aachen assumes that the real rents in the city of Aachen are now well above the values in the housing benefit table. The upper limit concept developed by the BSG does not apply against this background, as the case law of the Federal Social Court makes it clear that the appropriateness of the costs of accommodation must be based primarily on local conditions.
Now, even taking into account the safety surcharge of 10% introduced by the Federal Social Court, it is clear that the housing benefit table for Aachen no longer reflects the real situation.
Source: socialcourtsability.de
4.3 - Detmold Social Court, judgment of October 17, 2013 - S 18 AS 1095/12 - The appeal is admitted.
Guiding principles
According to Section 31b Paragraph 1 Sentence 1 SGB II, the claim to payment is reduced at the beginning of the calendar month following the entry into force of the administrative act that establishes the breach of duty. According to Section 31b Paragraph 1 Sentence 3 SGB II, the reduction period is three months.
Through a corresponding reduction notice, which establishes a breach of duty within the meaning of Section 31 SGB II, an approval notice that has already been issued for the reduction period loses its effect to the extent that the reduction extends. There is no need for an additional revocation decision in accordance with Section 48 SGB R). The determination notice itself revokes an approval that has already been granted with effect for the future.
If a SGB II benefit provider issues both a reduction notice and an approval notice that takes the reduction into account, the notices represent a legal unit in the sense of a uniform notice on the amount of unemployment benefit II in the period affected by the reduction (cf. BSG, judgment dated March 22, 2012, B 4 AS 68/09 R). There is therefore no need for a separate objection procedure against the approval decision in which the identified reduction is implemented. A further objection raised at the same time would be inadmissible. The same also applies in cases in which the reduction notice only partially affects an approval decision that has already been made and an approval notice with only reduced benefits is issued for the further period of the reduction in response to an application for continued payment.
Source: socialcourtsability.de
4.4 – Ulm Social Court, decision of October 23, 2013 (ref.: S 8 AS 3164/13 ER):
Principles from Dr.
Manfred Hammel There is a special, unavoidable and continuously occurring need within the meaning of Section 21 Paragraph 6 Sentence 1 SGB II (a so-called atypical need situation) for the wife and children to exercise their right of access to their father, who is imprisoned in a distant place. .
These costs of access rights are to be allocated to the person to whom they arise, namely the child visiting the father together with the mother after this legal guardian is prevented from actively exercising his or her access rights due to his imprisonment.
The fact that a child has not yet reached the age of three does not lead to any other consideration, because the first years of life are crucial for the child's bond with an adult.
In the interests of the child and in order to form and maintain constitutionally protected family ties, the job center must enable up to five one-hour visits per month and, if necessary, further visits as part of special programs (e.g. special parent-child projects).
The costs for exercising the right of access must be borne by the SGB II provider upon proof of the actual visit when using public transport in the amount of the actual expenses incurred up to the costs incurred in the lowest class.
When using a private vehicle, the job center must recognize EUR 0.20 in reasonable costs per kilometer in accordance with Section 6 Paragraph 1 No. 3b) Alg II-VO.
Applicants must claim higher expenses against proof if appropriate.
4.5 - SG Duisburg, decision of November 12, 2013 - S 49 AS 4010/13 ER
With 100% sanction voucher even without application for underage sister.
On November 12, 2013, the Duisburg Social Court ordered the suspensive effect of an objection against a sanction from the Essen job center in an urgent procedure. The main reason for the decision with the file number S 49 AS 4010/13 ER is that no benefit in kind or monetary benefit was provided at the same time as the sanction.
The sanction was imposed on an adult and led to the complete loss of standard benefits for those under 25 years of age. Since a minor sister lives in the same household, according to Section 31a Paragraph 2 Sentence 3 SGB II, the food voucher MUST be granted at the same time as the sanction decision, even without an application. A distinction as to whether a parent or a sibling is sanctioned cannot be inferred from the wording or the spirit and purpose of the law.
In particular, an indication in the hearing letter that this benefit can be applied for is not sufficient. The sanction is then illegal overall.
Source: Attorney Jan Häüßler, specialist lawyer for social law, Pferdemarkt 4, 45127 Essen. Here is the full text of the decision: www.jan-haeussler.de (pdf)
Note:
Likewise - SG Aurich, decision of July 1, 2013, - S 25 AS 96/13 ER, LSG NRW, decision of September 7, 2012, - L 19 AS 1334/12 B).
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Braunschweig Social Court, judgment of June 7, 2013 (ref.: S 46 SO 157/10, S 46 SO 206/11, S 46 SO 23/13):
Principles from Dr.
Manfred Hammel If you have a significant language impairment, you are generally entitled to benefits within the framework of integration assistance for disabled people (§§ 53 ff. SGB XII).
The priority principle of Section 2 Paragraph 1 SGB XII also covers priority services under school law.
In addition to the need for support and care at school, there may also be a supplementary entitlement to integration assistance, e.g. B. if the necessary and appropriate integration assistance measures (Section 54 Paragraph 1 Sentence 1 No. 1 SGB XII in conjunction with Section 12 Integration Assistance Ordinance) are not provided by the school authorities in any way.
However, according to the meaning and purpose of Sections 53 ff. SGB XII, which primarily provide for supporting services, the core area of school work lies outside the responsibility of the social welfare provider.
Services provided by school companions are part of the core area of the school's educational work, namely providing help when the teacher's instructions or explanations are not understood.
5.2 - SG Rostock, decision of October 28, 2013 - S 8 SO 80/13 ER
Guidelines
for integration assistants in special schools with a focus on intellectual development
The social welfare provider's obligation to provide benefits can also include measures that are part of the remit of the school administration or a school provider as part of the integration assistance. However, measures that are part of the core area of the school's educational work are excluded (connection to BSG, judgment of March 22, 2012 - B 8 SO 30/10 R).
The core area of the school's educational work can only be determined in more detail by referring to the state school regulations (deviation from BSG, judgment of March 22, 2012 B 8 SO 30/10 R).
According to the state law of Mecklenburg-Western Pomerania, the core of the educational work of the special school with a focus on intellectual development includes individual support in all areas of development and personality. This means that there is at best very limited scope for supporting integration assistance services in the form of an integration assistant.
Source: www.landesrecht-mv.de
6. Decisions on asylum law
6.1 – LSG Niedersachsen-Bremen, resolution of September 6, 2013 (ref.: L 8 AY 58/13 B ER):
Principles from Dr.
Manfred Hammel Neither the AsylbLG nor the SGB
An objection raised against the refusal to continue paying the basic benefits previously granted in accordance with Section 3 AsylbLG generally has a suspensive effect (Section 86a Paragraph 1 Sentence 1 SGG).
6.2 – LSG Niedersachsen-Bremen, resolution of October 1, 2013 (ref.: L 8 AY 38/13 B):
Principles from Dr.
Manfred Hammel Section 4 Paragraph 1 Sentence 1 AsylbLG does not apply to chronic illnesses that require arthroscopy.
According to this provision, “benefits in the event of illness” can only be provided in the event of unexpected, rapid and violent, irregular physical or mental conditions that require immediate medical treatment for medical reasons.
However, if the measure in question is to be considered essential for “safeguarding health” within the meaning of Section 6 Paragraph 1 Sentence 1 AsylbLG, a corresponding “other service” must be provided.
In this factual context, the statements of the Federal Constitutional Court in its decision of July 18, 2012 on the humane minimum subsistence level must also be taken into account.
7. Press release 8/2013 Social Court Mainz – Hartz-IV: Travel costs for visiting a specialist
In an oral hearing in October 2013 (ref.: S 15 AS 1324/10), the Mainz Social Court dealt with the question of whether a recipient of benefits under SGB II (“Hartz IV”) at the job center should pay travel costs for necessary specialist visits can be claimed as “additional need”.
Based on the social court's advice, the job center agreed to cover the travel costs on October 11, 2013 through a court settlement.
Source: www.mjv.rlp.de
8. BSG: Hartz 4 recipients are insured against accidents if they do trial work on their own initiative
Job applicants are legally insured against accidents if they do unpaid trial work in a company. The prerequisite for this is integration into the company and being bound by instructions, the Federal Social Court (BSG) in Kassel ruled on Thursday, November 14, 2013 (ref.: B 2 U 15/12 R). Unemployed people who take up trial work on their own initiative without instructions from the job center are also insured.
Next: Hartz 4 recipients are insured against accidents when doing trial work on their own initiative - Law & Law - JuraForum.de, here to the source: www.juraforum.de
9. SG Berlin on the electronic health card – photo is mandatory – SG Berlin, decision by.
November 7, 2013 - S 81 KR 2176/13 ER, full text of the decision here: Sozialgerichtsbarkeit.de
From the beginning of 2014, the use of the electronic health card will be mandatory for all insured people. An exemption from this obligation is not possible, the SG Berlin has now decided. The storage of personal data on the insurance card does not violate the basic rights of the insured.
Next: SG Bln: Electronic health card constitutional, here: www.lto.de
Also current: Hessian State Social Court, judgment of September 26, 2013 - L 1 KR 50/13 -, available here: www.lareda.hessenrecht.hessen.de
9. Attorney Helge Hildebrandt, Kiel social advice: Rent cap moratorium in Kiel
In current rent cap procedures, in which a rent that is too high is to be reduced to the currently applicable rent cap for the first time, the Kiel Job Center has recently suspended the rent reduction procedures as long as the excess is not too high. The reason for this is the city of Kiel's efforts to redefine Kiel's rent ceilings in a court-proof manner in the Rent Ceilings Working Group. The results are expected to be presented to the social committee of the state capital Kiel in February 2014. The rent ceilings are likely to be raised moderately.
Lawyer Helge Hildebrandt, Holtenauer Straße 154, 24105 Kiel, Tel. 0431 / 88 88 58 7
Source: Rent Ceiling Moratorium | Social advice Kiel, here is the link: Sozialberatung-kiel.de
10. Social law in Freiburg: BSG allows revision on the subject of personal budget/target agreement
Since January 1st, 2008 there has been a legal right to a personal budget (pB) (Section 17 Paragraph 3 in conjunction with Section 159 Paragraph 5 SGB IX) [Information on Budget]. However, according to Section 4 of the Budget Ordinance, a pB can only be approved if a target agreement has been concluded. But what if the authorized person and the authority cannot reach an agreement on the target agreement? The Stuttgart State Social Court decided in the case L 5 R 3442/11 on February 20, 2013 that the entitlement to a pB no longer applies if no target agreement is concluded. The dispute in the matter is whether the plaintiff, who is disabled by a brain injury, can use the pB to visit another facility instead of a WfbM - here: a support and care group for people with acquired brain injury.
The appeal was denied. In response to the non-admission complaint (filed by our law firm), the BSG admitted the appeal in its decision of October 24, 2013 (B 13 R 125/13 B). We hope that the appeal proceedings that have now opened will contribute to the urgently needed clarification of the relationship between the legal claim to pB on the one hand and the agreement on objectives according to Section 4 BudgetV on the other. (rr)
Source: Social law in Freiburg - Hartz IV - social assistance - health insurance - www.srif.de , here for the law firm's appearance: www.socialrecht-in-freiburg.de
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
