1. Decisions of the Federal Social Court of 22 December 2013 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 12.12.2013 – B 14 AS 83/12 R
Guiding principle:
Operating cost credits within the meaning of Section 22 Paragraph 1 Sentence 4 SGB 2 aF reduce the "actual expenses" for accommodation and heating of the benefit recipient and not the expenses for accommodation and heating recognized as appropriate by the basic income support provider.
Source: Report of the Federal Social Court (BSG) hearing of December 12, 2013, available here: juris.bundessozialgericht.de
Note:
Same opinion – Social Court Dresden, judgment of 16 January 2012 – S 36 AS 7571/10 and Social Court Kiel, judgment of 7 February 2012 – S 38 AS 218/10.
1.2 – BSG, Judgment of 12.12.2013 – B 14 AS 90/12 R
Guiding principles: Asset protection of the “family home” as a “multi-generational house” is possible under the German Social Code, Book II (SGB II) as a special hardship within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 Alternative 2 SGB II.
An inappropriately owned, self-occupied house belonging to the benefit recipient, in which family members who do not belong to the benefit or household community live in a second apartment in the house, may be exempted from realization due to a special hardship within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 Alternative 2 SGB II.
A particular hardship within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 Alternative 2 of the German Social Code, Book II (SGB II) may be considered if a house or property is not protected under Section 12 Paragraph 3 Sentence 1 No. 4 of the SGB II, which would be protected under Section 90 Paragraph 2 No. 8 of the German Social Code, Book XII (SGB XII), because there the relatives living "under one roof" are included in the assessment of appropriateness, but not in the SGB II (outside of the benefit unit and household community).
Source: Report of the Federal Social Court (BSG) hearing of December 12, 2013, available here: juris.bundessozialgericht.de
1.3 – BSG, Judgment of 12.12.2013 – B 14 AS 76/12 R
Guiding principles:
Even a wasteful heir is entitled to Hartz IV benefits.
If long-term unemployed individuals spend an inheritance lavishly, they can still claim Hartz IV benefits if they are destitute. The job center is obligated to grant benefits even in such cases. Benefits can only be denied in cases of socially unacceptable behavior.
He spent his inheritance on things like food and replacing old furniture and clothes. But there was also money left over for a digital camera and a trip to Turkey.
According to the consistent jurisprudence of the senates of the Federal Social Court (BSG) responsible for basic income support for jobseekers (judgments of November 29, 2012 – B 14 AS 33/12 R and of September 10, 2013 – B 4 AS 89/12 R), a one-time payment may only be considered as income in a distribution period to the extent that it is readily available to cover the specific needs in the respective month. If the one-time payment is no longer available, unemployment benefit II (Alg II) must be granted again upon application. Whether a claim for compensation under Section 34 of the German Social Code, Book II (SGB II) or a reduction of the benefit due to a breach of duty (Sections 32, 31 para. 2 SGB II) is applicable is not to be examined in this case.
Source: Report of the Federal Social Court (BSG) hearing of December 12, 2013, available here: juris.bundessozialgericht.de
1.4 – BSG, from December 12, 2013 – B 4 AS 9/13 R
Preliminary ruling procedure on the principle of equal treatment for EU citizens
The Senate has suspended the proceedings and referred the following questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling:
1. Does the principle of equal treatment under Article 4 of Regulation (EC) No 883/2004 – with the exception of the export exclusion under Article 70(4) of Regulation (EC) No 883/2004 – also apply to the special non-contributory cash benefits within the meaning of Article 70(1) and (2) of Regulation (EC) No 883/2004?
2. If the answer to question 1) is yes: Are restrictions on the principle of equal treatment under Article 4 of Regulation (EC) No 883/2004 possible – and if so, to what extent – through provisions in national legislation implementing Article 24(2) of Directive 2004/38/EC, according to which access to these benefits is categorically denied if the Union citizen's right of residence in the other Member State arises solely from the purpose of seeking employment?
3. Does Article 45(2) TFEU, in conjunction with Article 18 TFEU, preclude a national provision which denies Union citizens who, as jobseekers, can invoke their right to freedom of movement, a social benefit intended to secure their livelihood and simultaneously facilitate access to the labour market, without exception, for the duration of a right of residence solely for jobseeking and irrespective of their connection with the host State?
Source: Report of the Federal Social Court (BSG) hearing of December 12, 2013, available here: juris.bundessozialgericht.de
Note:
See also: Referral to the ECJ regarding the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 Nos. 1 and 2 of the German Social Code, Book II (SGB II) for EU citizens, an article by the law firm Fritz & Partners, available here: www.sozialrecht-in-freiburg.de
1.5 – BSG, Judgment of 12.12.2013 – B 4 AS 6/13 R
Guiding principles:
No hardship benefit within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for orthodontic treatment, because there was no unavoidable need.
Due to the subsidiary nature of this social security system compared to other social welfare systems, a medical need can only be considered unavoidable within the meaning of basic income support law if statutory health insurance is not obligated to provide the service, i.e., to cover the need. In principle, the eligible person must first assert their need to their health insurance provider. Only if the provider refuses to grant the service, and the treatment is nevertheless medically necessary but is only covered by statutory health insurance with limitations, can a hardship benefit for subsistence be considered. While statutory health insurance law does stipulate limitations on the obligation of health insurance providers to provide services in the area of orthodontic care, if orthodontic care is provided by statutory health insurance – as in this case – it provides the legally mandated medically necessary care. Therefore, the medical necessity for the orthodontist's supplementary treatment measures was not established for this reason alone.
Source: Report of the Federal Social Court (BSG) hearing of December 12, 2013, available here: juris.bundessozialgericht.de
2. Decisions of the Federal Social Court of 22 August 2013 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 22 August 2013 – B 14 AS 85/12 R
Guiding principles:
A deviation from the per capita principle when calculating the relevant housing costs is also possible based on a civil law agreement. This is because, in situations where individuals live in an apartment without forming a household unit, valid contractual agreements take precedence.
In situations where several people share an apartment without forming a household, such as in shared apartments, the allocation of housing costs—deviating from the per capita principle—is determined by the share allocated to each roommate according to internal agreements. The decisive factor is whether a valid contractual agreement exists. If such an agreement has been validly concluded, it takes precedence over the per capita allocation based on the practical considerations outlined above. Furthermore, in shared apartments, the intensity of occupancy is likely to form the basis of the internal contractual agreements regarding the extent to which the members of the household contribute to the total costs of accommodation and heating.
Source: juris.bundessocialgericht.de
3. Decisions of the Federal Social Court of 12 December 2013 on social assistance (SGB XII)
3.1 – BSG, Judgment of 12.12.2013 – B 8 SO 24/12 R
Guiding principles:
The threat of homelessness after release from prison, in connection with the applicant's personality structure and particular living circumstances involving social difficulties, can establish an entitlement to assistance to overcome particular social difficulties under Sections 67 et seq. of the German Social Code, Book XII (SGB XII). This also includes (preventive) measures to maintain housing.
For reasons of administrative practicality, it is advisable to generally grant benefits only for a period of up to one year; however, the focus should not be on the total duration of the detention, but rather on the (expected) benefit period until release from detention for which benefits are claimed.
Source: Report of the Federal Social Court (BSG) hearing of December 12, 2013, available here: juris.bundessozialgericht.de
4. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
4.1 – North Rhine-Westphalia State Social Court, decision of 25 November 2013 – L 19 AS 578/13 B ER legally binding
Guiding principles:
A Greek national is entitled to subsistence assistance in the amount of the standard allowance for single adults according to the German Social Code, Book XII (SGB XII).
If the applicant has a right of residence for the purpose of job seeking, the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) applies according to its wording.
A Greek national is not excluded from receiving benefits under the German Social Code, Book XII (SGB XII), either under Section 21 or under Section 23 Paragraph 3 of the SGB XII.
In such a case, a decision must be made based on a balancing of interests (Federal Constitutional Court decision of 12 May 2005 – 1 BvR 569/05).
The Federal Republic of Germany has not declared a reservation under Article 16b of the European Framework Convention on Social Security (EFS) regarding subsistence benefits under Chapter 3 of the German Social Code, Book XII (SGB XII). The reservation issued by the Secretary General of the Council of Europe on December 19, 2011, concerning benefits under the SGB XII, relates only to assistance for overcoming particular social difficulties (Sections 67 to 69 SGB XII). Therefore, the EFS applies to the applicant, and the principle of equal treatment for domestic residents applies (see, in this regard, the Senate's decision of June 29, 2012 – L 19 AS 973/12 B ER).
Benefits for accommodation and heating were not granted because the applicant failed to demonstrate grounds for such an order. Grounds for an order for accommodation and heating are only considered to be established if there is an actual threat to the accommodation, which is generally assumed to exist at the earliest upon service of an eviction notice (see, for example, the rulings of the Higher Social Court of North Rhine-Westphalia of July 8, 2013 – L 2 AS 1116/13 B ER, and of September 10, 2013 – L 2 AS 1541/13 B ER).
Source: socialcourtsability.de
5. Decisions of the social courts on basic income support for job seekers (SGB II)
5.1 – SG Nordhausen, Judgment of 12.12.2013 – S 17 AS 8973/10
Guiding principles:
In cases of differing assessments of employability by the pension insurance provider on the one hand and the medical service of the employment agency on the other, the job center may not refer the person seeking help to benefits from the social welfare office.
The court rejected as legally erroneous the view that the receipt of social assistance negated the need for legal protection. The plaintiff's case, in particular, demonstrated that it makes a difference whether one receives Hartz IV benefits or social assistance benefits. Periods of Hartz IV receipt up to the end of 2010 were linked to contributions to the pension insurance scheme and, even thereafter, to creditable periods.
Source: Thüringer Allgemeine, December 12, 2013, article available here: www.thueringer-allgemeine.de
5.2 – Schleswig Social Court, decision of 11 December 2013 – S 22 AS 177/13 ER
Hartz IV: Entitlement to extracurricular learning therapy for dyscalculia
The Schleswig Social Court, in its decision of December 11, 2013 (S 22 AS 177/13 ER), awarded a 9-year-old student diagnosed with dyscalculia benefits for appropriate learning support pursuant to Section 28 Paragraph 5 of the German Social Code, Book II (SGB II). The costs of learning therapy that is not merely temporary are therefore also eligible for coverage under the Education and Participation Package.
Source: Attorney Helge Hildebrandt, Holtenauer Straße 154, 24105 Kiel, here is the link to the decision: sozialberatung-kiel.de
6. Decisions of the State Social Courts on Social Assistance (SGB XII)
State Social Court of Baden-Württemberg, Judgment of 16 October 2013 – L 2 SO 3798/12
Principle:
Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) applies to the granting of social assistance in the form of the assumption of funeral costs pursuant to Section 74 SGB XII. Therefore, the assumption of funeral costs pursuant to Section 74 SGB XII is only possible in individual cases for Germans who have their habitual residence abroad, under the conditions of Section 24 Paragraph 1 Sentence 2 SGB XII.
Source: socialcourtsability.de
7. Decisions on employment promotion law according to the German Social Code, Book III (SGB III)
7.1 – Saxon State Social Court, Judgment of 03.7.2013 – L 3 AL 78/12
Important reason for missing a scheduled appointment
Guiding principles:
The applicant had an important reason for not attending her appointment at the employment agency, because the applicant's private interests in carrying out and continuing her long-standing employment had a clear priority in relation to her obligation to attend an appointment at the employment agency.
A secondary job can also be one of the important reasons for cancelling an appointment.
However, the mere fact of an employment relationship is not sufficient for a compelling reason within the meaning of Section 38 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III). Rather, the employee is obligated to reconcile their various obligations: on the one hand, their employment law obligations and the duty not to jeopardize the continuation of the employment relationship, and on the other hand, their duty to cooperate with the employment agency. Within the bounds of what is legally permissible under labor law, this can be achieved, for example, by adjusting working hours accordingly. If necessary, however, they must also request time off from work or take vacation. This was not possible in the applicant's case.
Source: socialcourtsability.de
Note:
See also the following regarding the German Social Code, Book II (SGB II): Social Court Kiel, judgment of 12 September 2012 – S 40 AS 340/12
The job center may not impose a sanction against a self-employed person supplementing their income who cancels a reporting appointment due to a client meeting.
8. Commentary by Judge Dr. Malte W. Fügemann on BSG, 14th Senate, Judgment of 16 April 2013 – B
14 AS 55/12 R
Legal provisions: Section 92a BSHG, Section 31 SGB 2, Section 7 SGB 2, Section 38 SGB 2, Section 45 SGB 10, Section 48 SGB 10, Section 34 SGB 2, Section 34a SGB 2
Induced need for assistance of members of the household following imprisonment for drug trafficking
Guiding principle:
The social unacceptability of a behavior is not based on the criminality of an act, but on the fact that the person being served has, in a reprehensible manner, placed themselves or the persons living with them in a household in a situation where they have to claim benefits under the German Social Code, Book II (SGB II).
Source: juris, link here: www.juris.de
9. MainArbeit, the famous flagship job center of the independent city of Offenbach, has set a new record: A case worker has imposed a sanction of 350% on one of her clients.
Continue to the article here: www.linkezeitung.de
Issue 10 of the unemployment newspaper "quer" No. 08 has been published.
This issue of quer features articles on topics including the level of a living wage and forced retirement. It also includes plenty of tips for practical or political resistance. Read more here: www.also-zentrum.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
