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 89/12 R
Basic security for job seekers - cancellation of the benefit approval for the past - income consideration - severance payment - distribution period - consideration of interim income consumption
Guiding principles:
1. If the funds from the severance payment were actually and irretrievably used up, i.e. if “ready funds” were actually available when the new approvals were granted - not even as remaining amounts - then these do not prove to be initially unlawful within the meaning of Section 45 Paragraph 1 Sentence 2 No. 3 SGB R with reference to Section 34 SGB II).
2. There was no need for further clarification as to when the amount from the severance payment was no longer available. This is because the consumption here does not represent a change in circumstances that is essential for the revocation according to Section 48 SGB X. When applying Section 48 SGB Reclaim (only) in the future will be a liability towards the basic security provider (cf. BSG, judgment of November 29, 2012 - B 14 AS 33/12 R).
Source: juris.bundessocialgericht.de
Note:
See LSG NRW, judgment of September 19, 2013 - L 7 AS 1745/11 - On the application of Section 48 SGB X with effect for the past when using the interest from the building savings contract to repay debts.
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 60/12 R
Unemployment benefit II - accommodation and heating - inappropriateness of heating costs - function of the limit value of a heating cost index - cost reduction procedures - reasonableness of a move - economic efficiency comparison
Guiding principles:
1. The so-called 6 month period for the implementation of cost reduction measures also applies to heating costs.
2. The entitlement to heating services as part of the overall service also generally exists in the amount of the specifically and individually claimed expenses, provided they are appropriate. An abstractly appropriate heating cost price per square meter for a “simple” apartment (staggered according to abstractly appropriate apartment sizes) in the lower segment of the housing market, based on an individual’s heating behavior that is considered appropriate, would still have to take into account climatic conditions, changing energy prices, the “typical” energy sources, but above all Record the “typical” building standard in the corresponding rental segment and the technical status of a heating system that can be viewed as “typical”. Recourse to a less differentiated value as a maximum square meter limit, as described by the job center with the costs for an energy consumption of 148 kWh per year per square meter of living space, would mean an inadmissible flat rate for heating costs (BSG judgment of July 2, 2009 - B 14 AS 36 /08 R). Such estimates of a general value “in the dark” without a secure empirical basis are not permissible when determining the constitutionally guaranteed minimum subsistence level (see BVerfG judgment of February 9, 2010 – 1 BvL 1/09); This applies equally to standard needs and needs for accommodation and heating.
3. According to the case law of the BSG, the so-called nationwide heating level should be used as the limit for unreasonable heating costs. Despite the criticism, in particular by the editors of Heizspiegel, of the function for SGB II derived from these values by case law (cf. the statement of co2online gGmbH from October 12, 2012 at www.heizspiegel.de/heizspiegelaktion/hart z-iv/index.html ), the Senate adheres to this case law. As long as the locally responsible provider of basic security has not carried out differentiated data determination in the sense described for the specific comparison area that allows reliable conclusions to be drawn about a value for heating costs that are appropriate under basic security law in its area of responsibility, the use of a limit value is necessary for reasons of practicability; Accordingly, the case law of the BSG was not subsequently corrected by the legislature. There is no mistaking the fact that the high limit value runs counter to the energy policy objective of a heating mirror. However, such objectives are irrelevant in the scope of application of SGB II according to the legislative requirements.
4. The limit value from a (national or municipal) heating cost index does not have the function of a maximum square meter limit, with the result that if heating costs are unreasonably high, heating expenses up to this amount, but only this amount, would have to be covered. This value is also not based on an analysis of data that would allow the conclusion that these are reasonable costs. The limit value does not mark appropriate heating costs, but rather indicates that unreasonable heating costs are to be assumed; Exceeding the limit value can only be viewed as an indication of the lack of appropriateness (“as a rule”). In the event of a dispute, this means that the recipient of the benefit in need of assistance is responsible for explaining why his or her expenses can nevertheless be viewed as reasonable. In this respect, exceeding the limit leads to prima facie evidence to the detriment of the beneficiary in need of assistance that unreasonably high costs can be assumed. If it cannot be determined that higher expenses are nevertheless appropriate in an individual case, the consequences in terms of the material burden of proof will apply.
5. Also unreasonably high (and therefore uneconomical) costs such as: E.g." “The unfavorable energy standard of an apartment”, which the benefit recipient in need of assistance cannot influence, does not in principle entitle the basic security provider to demand cost-cutting measures other than in the case of excessive accommodation costs.
6. Job centers cannot always demand a move because heating costs are too high; changing apartments must also be worthwhile § 22 Paragraph 1 Sentence 4 SGB II. Changing apartments as a cost-cutting measure due to excessive heating costs is only reasonable if there are no higher costs overall in an alternative apartment than previously incurred. Only a change of residence that can achieve this goal is the “economic behavior” required of the beneficiary in need of assistance. A change of residence that leads to lower heating costs but not to lower overall costs would itself be uneconomical and therefore unreasonable.
7. The request to reduce heating costs was unlawful because a cost reduction primarily through energy savings cannot be achieved within “six months” when the corresponding costs are billed annually by an energy supply company. It might seem appropriate because of the cost reduction through saving energy (which is due to the regulation in Section 22 Paragraph 1 Sentence 4 SGB II old version). in any case benefits the basic security provider) to regularly allow a longer period of time to change consumption behavior. However, there is no need to make a final decision on this because the JC has not implemented the announced reduction in heating costs. Since the costs of accommodation and heating were covered in full over a long period of time following the first request to reduce costs, a reduction was no longer allowed to take place on the basis of this request to reduce costs alone.
Source: juris.bundessocialgericht.de
2.2 – BSG, judgment of June 12, 2013 – B 14 AS 73/12 R
Basic security for job seekers - income consideration - inheritance - insolvency proceedings - transfer of half of the inheritance to the insolvency administrator to receive discharge of residual debts - no ready funds
Guiding principles:
1. Only half of the inheritance is to be taken into account as income if half the value of the inheritance was transferred to the trust dealer in accordance with Section 295 Paragraph 1 No. 2 InsO.
2. Regardless of the subsidiarity of state assistance to the debtor's obligation to repay private debts within the framework of insolvency law, e.g. according to Section 295 Paragraph 1 No. 2 InsO, the decisive factor in the present case is that due to such repayment at the beginning of the disputed period only Half of the inheritance was still available as ready funds and was therefore to be taken into account as income (cf. BSG, judgment of November 29, 2012 - B 14 AS 33/12 R).
Source: juris.bundessocialgericht.de
3. Decisions of the Federal Social Court of March 28, 2013 on basic security for job seekers (SGB II)
3.1 - BSG, judgment of March 28, 2013 - B 4 AS 59/12 R
Administrative procedure under social law - withdrawal of an illegal, favorable administrative act - basic security for job seekers - approval of benefits beyond the time of commencement of training that excludes benefits - protection of trust - failure to notify the BAföG application - the administrative act is not based on this breach of duty - partial revocation of the administrative act according to § 48 SGB 10 – Earning income – BAföG
Guiding principles:
1. The withdrawal of an initially illegal approval of SGB II benefits due to a violation of notification obligations through omission requires that the failure to report the specific circumstances in a timely manner was essential for the approval and knowledge of this would have prevented an illegal approval.
2. If basic security benefits are approved at least in principle after the start of training with a BAföG entitlement, this administrative act is illegal from the start even if BAföG benefits are only approved after the start of the training.
Source: juris.bundessocialgericht.de
4. Decisions of the state social courts on basic security for job seekers (SGB II)
4.1 - LSG NRW, judgment of October 10, 2013 - L 19 AS 129/13 - The appeal was permitted.
Guiding principles:
1. Romanian citizens who continue to reside in the federal territory after a long, objectively hopeless job search are entitled to ALG II.
2. Employable EU citizens who have a right of residence for reasons other than looking for work are not covered by the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 SGB II. This also applies to EU citizens without a reason for residence within the meaning of Community law on freedom of movement.
Source: socialcourtsability.de
Note:
See also: Press release from the LSG NRW from October 11, 2013 - “Hartz IV” - entitlement for migrants. State social court approves basic security benefits for Romanian families, available here: www.justiz.nrw.de
4.2 - Berlin-Brandenburg State Social Court, decision of September 18, 2013 - L 20 AS 2278/13 B ER legally binding
exclusion of benefits for foreigners when staying to look for work
Guiding principles:
1. Italian citizens are entitled to ALG II.
2. Section 7 Paragraph 1 Sentence 2 No. 2 SGB II does not prove to be contrary to European law. However, the provision does not apply to nationals of a contracting state to the European Welfare Agreement of December 11, 1953 - EFA - because Article 1 EFA requires this under international law excludes (otherwise: Senate resolution of June 21, 2012, Ref.: L 20 AS 1322/12 B ER).
3. This mandatory interpretation of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II resulting from the international law obligation under Article 1 EFA has not been changed by the Federal Government with effect from December 19, 2011 for benefits according to SGB II with reference to Art. 16 b) EFA declared reservation changed (iE as here: LSG Berlin-Brandenburg of May 9, 2012, L 19 AS 794/12 B ER: aA LSG Berlin-Brandenburg of June 7, 2012, L 29 AS 920/12 B ER).
4. Art. 16 b EFA does not offer the contracting parties any basis to unilaterally release themselves from existing obligations and to subsequently lower the achieved legal standard of care for nationals of contracting parties to the EFA (BVerwG of May 18, 2000, 5 C 29/98; LSG Rheinland -Pfalz from August 21, 2012, L 3 AS 250/12 B ER; LSG Berlin-Brandenburg from May 23, 2012, L 25 AS 837/12 B ER; aA LSG Berlin-Brandenburg from August 2, 2012, L 5 AS 1297/12 B ER).
Source: socialcourtsability.de
Note:
See Bavarian LSG, judgment of June 19, 2013 - L 16 AS 847/12 - appeal pending at the Federal Social Court under the reference: B 14 AS 51/13 and LSG Saarland, decision of June 13, 2013 - L 9 AS 3 /13B ER.
4.3 - State Social Court of Lower Saxony-Bremen, decision of October 10, 2013 - L 7 AS 1144/13 ER
Social court procedure - modification or cancellation of an interim order - action for modification - action to prevent enforcement - no analogous application of § 86b Paragraph 1 S 4 SGG or § 927 ZPO - Responsibility
Guiding principles from Juris:
1. No analogous application of Section 86b Paragraph 1 Sentence 4 SGG or Section 927 ZPO can be considered for the modification or cancellation of an interim order (regulatory order). Rather, legal protection is to be granted via an action for modification in accordance with Section 323 ZPO or by way of an action to prevent enforcement in accordance with Section 767 ZPO.
2. The social court is responsible for changing the interim regulation, even if it was issued by the state social court.
Source: socialcourtsability.de
Note:
Different opinion: Bavarian LSG, decision of July 16, 2009 - L 8 SO 85/09 B ER; LSG Baden-Württemberg, decision of October 11, 2010 - L 7 SO 3392/10 ER B.
5. Decisions of the social courts on basic security for job seekers (SGB II)
5.1 - SG Mainz, judgment of October 18, 2013 - S 17 AS 1069/12
Guiding principles of social law in Freiburg - Lawyers Fritz and colleagues:
1. The limitation of the entitlement to the old accommodation costs when receiving benefits according to SGB II in the event of an unnecessary move within the old place of residence only applies to approval periods for which approval notices have already been issued at the time of the move .
2. The regulation of Section 22 Paragraph 1. 2 SGB II is to be interpreted in accordance with the principle of constitutional interpretation to the effect that the limitation to previous needs after an unnecessary move only applies to approval decisions that have already been made at the time of the move. For all approval periods after the move, the general regulation of Section 22 Paragraph 1 Sentence 1 SGB II applies, according to which needs for accommodation and heating are recognized in the amount of the actual expenses, provided these are appropriate. A time-limited and not otherwise compensated under-coverage of accommodation needs would violate the fundamental right to guarantee a humane minimum subsistence level under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the welfare state principle of Article 20 Paragraph 1 of the Basic Law, as stated in the BVerfG ruling dated February 9, 2010 (ref. 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09).
Source: www.socialrecht-in-freiburg.de , for the judgment here: www.srif.de
Note:
Different opinion: Thüringer LSG, judgment of June 6, 2013 - L 9 AS 1301/11 legally binding
5.2 – Lübeck Social Court, court decision dated August 29, 2013 (ref.: S 26 AS 405/12):
Principles from Dr.
Manfred Hammel: Until March 31, 2011, there was no legal basis for a job center to order the immediate repayment of a rental deposit loan granted (Section 22 Paragraph 6 Sentence 3 SGB II) if further assistance was needed.
However, the regulations on repayment and offsetting that came into force on April 1, 2011 in Section 42a SGB II are mandatory from this point onwards due to the lack of a transitional regulation. This also applies if the SGB II provider has previously set off in accordance with Section 23 Paragraph 1 Sentence 3 SGB II a. F. carried out.
5.3 - Heilbronn Social Court, court decision of October 31, 2013 (ref.: S 7 AS 1838/13 - not legally binding):
Principle of Dr.
Manfred Hammel: On the immediate and complete denial of the continued granting of Alg II in accordance with Section 66 Paragraph 1 Sentence 1 SGB I because the benefit recipient neither attended nor attended a medical examination to determine her continued ability to work (Section 8 Paragraph 1 SGB II). Consented to the job center disclosing existing medical reports about them.
Full text can be downloaded here: s14.directupload.net (pdf)
Note:
See Bavarian LSG, decision of August 31, 2012, - L 7 AS 601/12 B ER
Basic security for job seekers - Determination of earning capacity - Denial of benefits due to lack of cooperation according to Section 66 SGB 1 - No displacement by Sections 31 ff or 44a SGB 2 - Appeal to data protection and informational self-determination - Exercise of discretion - Requirements for the justification of a complete refusal)
Guiding principles from Juris:
Hartz IV: Complete denial of unemployment benefit II according to Section 66 SGB I due to a lack of cooperation in clarifying the ability to work is generally possible.
1. A denial of subsistence benefits (here unemployment benefit II) in accordance with Section 66 SGB I is generally possible. It is not displaced by the regulations on sanctions according to Sections 31 ff SGB II and is not called into question by the seamless regulation in Section 44a Paragraph 1 SGB II.
2. The tension between the aforementioned regulations must be resolved within the scope of the exercise of discretion in refusing. If the ability to work is questionable, the involvement should clarify whether the job center or the social welfare agency is responsible. The regulations on sanctions make it clear that a complete loss of subsistence benefits should only occur in the event of persistent breaches of duty.
3. If a complete denial is to take place due to a lack of cooperation in clarifying the ability to work due to a suspected mental illness, the discretionary considerations must address why, despite the above-mentioned aspects, a complete denial of the subsistence level should be reasonable in this case.
4. Data protection and informational self-determination do not mean that social benefits have to be granted if the eligibility requirements for them have not been clarified.
Source: www.gesetze-bayern.de
5.4 - SG Neubrandenburg, judgment of April 18, 2012 - S 14 AS 3016/11
Unemployment benefit II - accommodation and heating - increase in reasonable accommodation costs due to moving - limitation of benefits to the previous accommodation costs - necessity of the move - apartment too small - individual case consideration
Juris' guiding principle:
As part of the basic security for job seekers, moving to another apartment is not necessary in the legal sense if the apartment inhabited is significantly smaller than the adequacy limit derived from the WoFG would allow. For a young, single person in need of help, 25.35 square meters is not unreasonably small.
Source: www.landesrecht-mv.de
6. Decisions of the state social courts on social assistance (SGB XII)
State Social Court of North Rhine-Westphalia, judgment of September 23, 2013 - L 20 SO 279/12 The appeal is permitted.
Guiding principles:
1. The use of a cable connection by foreign-language service recipients represents an unavoidable need, but the costs for a cable connection must be covered by the services already provided with the standard rate, so their level of need does not differ significantly from an average need away.
2. A different determination of the need according to Section 27a Paragraph 4 Sentence 1 SGB XII would only be considered if the minimum level of social participation was not ensured, taking into account reasonable control of spending behavior based on individual preferences.
Source: socialcourtsability.de
7. The urgent social court procedure - illustrated in cases of SGB II, XII and the AsylbLG,
A treatise by Prof. Dr. Volker Wahrendorf, Mülheim, printed in Sozialrecht aktuell, issue 06/2013, here for the paper: www.socialrecht-aktuell.nomos.de (pdf)
8. Recourse to the standard requirement - system-appropriate barriers for legislators and jurisprudence?
Prof. Dr. Reimund Schmidt-De Caluwe, Martin Luther University Halle-Wittenberg, here for information: www.boorberg.de (pdf)
9. The empirical-statistical determination of the appropriateness limit by experts,
procedural legal requirements and content design. Dr. Ing. Christian von Malottki, Institut Wohnen und Umwelt GmbH of the State of Hesse and the City of Darmstadt, printed in the info also issue 03/2012, here for the article: www.info-also.nomos.de (pdf )
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
