1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Lower Saxony-Bremen State Social Court, Judgment of 19 December 2013 – L 7 AS 1470/12 – The appeal was granted
Job center will not cover travel expenses for grandmother's visits with her granddaughter
Principle:
Grandparents are not entitled to reimbursement from the job center for costs incurred in visiting their grandchildren. Expenses, such as travel costs for visits, must be covered by their standard benefits.
Source: Press release from the Lower Saxony-Bremen State Social Court dated December 20, 2013, available here: www.landessozialgericht.niedersachsen.de
Note:
The same view is held by the Social Court of Karlsruhe, judgment of 23 September 2013 – S 11 AS 2299/13
1.2 – Bavarian State Social Court, Judgment of November 6, 2013 – L 11 AS 661/11 – The appeal is granted.
Principle:
For the prognosis to be made pursuant to Section 7 Paragraph 4 Sentence 3 of the German Social Code, Book II (SGB II), regarding the expected length of stay in an inpatient facility, the decisive factor is the point in time when benefits under the SGB II are applied for.
Source: socialcourtsability.de
Note:
Dissenting opinion: Rhineland-Palatinate Higher Social Court, judgment of 18 December 2008 – L 5 AS 31/08
1.3 – Bavarian State Social Court, decision of 19 November 2013 – L 7 AS 753/13 B ER
Guiding principles:
According to the judgment of the ECJ of 19 September 2013, C-140/12 (Brey), special non-contributory cash benefits within the meaning of Article 3(3) of Regulation (EC) No 883/2004 can be social assistance benefits within the meaning of Article 7(1)(b) and Article 24(2) of Directive 2004/38/EC. These terms are not mutually exclusive.
According to the definition of the ECJ, social assistance benefits are aid systems used by an individual who does not have sufficient means of subsistence to meet his basic needs and thus places a burden on public finances.
There is therefore considerable support for the idea that benefits to secure subsistence under Book II of the German Social Code (SGB II) are also social assistance benefits within the meaning of Directive 2004/38/EC and thus, in principle, can be excluded pursuant to Article 24(2) of Directive 2004/38/EC.
This exclusion criterion must be limited under EU law to the extent that social assistance benefits are granted if they are not claimed unreasonably. Persons without a genuine link to the labor market are excluded. Mere registration as unemployed is not sufficient.
Source: socialcourtsability.de
1.4 – Saxon State Social Court, Judgment of December 19, 2013 – L 7 AS 637/12. The appeal was granted.
SGB II benefits: The concept of the state capital Dresden regarding housing needs was confirmed with limitations.
The 7th Senate has now ruled that the IWU report, including the supplementary statement of February 16, 2012, in its original form, does not meet the requirements for a coherent concept established by the Federal Social Court (BSG) in its jurisprudence. No figures may be included as a calculation element that do not relate to the relevant comparison area – in this case, the city of Dresden (e.g., the 2006 microcensus). Individuals under 25 years of age may not be excluded, and only so-called recognized over-income earners (individuals living in an unreasonably expensive apartment who, for individual reasons, do not have to move) may be disregarded.
Source: Press release from the Saxon State Social Court dated December 19, 2013, available here: www.justiz.sachsen.de
Note:
See also: Dresden must pay higher housing costs to Hartz IV recipients, read more here: www.dnn-online.de
1.5 – North Rhine-Westphalia State Social Court, decision of 09.12.2013 – L 2 AS 843/13 B legally binding.
Principle:
According to the clear wording of the provision, the assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) refers only to the expenses for the new accommodation, i.e., the net rent plus the operating costs (excluding heating), and specifically not to the expenses for heating (cf. Berlin-Brandenburg State Social Court, decision of 27.10.2008 – L 5 B 2010/08).
Source: socialcourtsability.de
1.6 – North Rhine-Westphalia State Social Court, Decision of December 4, 2013 – L 19 AS 2069/13 B (legally binding
principles:
Replacing furniture that is no longer functional due to age and wear and tear constitutes a replacement purchase (cf. Federal Social Court judgment of July 1, 2009 – B 4 AS 77/08 R). In such a case, it is reasonable to expect a benefit recipient to draw on reserves, such as those accumulated from wages, wage replacement benefits, or even the standard benefit under Book II of the German Social Code (SGB II), to provide for the replacement.
If the replacement of furniture constitutes an unavoidable need within the meaning of Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), a loan may be granted. Further benefits are excluded according to Section 24 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
1.7 – North Rhine-Westphalia State Social Court, decision of 05.12.2013 – L 6 AS 926/13 B legally binding.
Key principles:
If an obligation to repay current income arises only after the month of receipt (here through the revocation and recovery of a decision underlying the receipt of child benefit for the past), it remains considered income for the month of receipt (compare Federal Social Court judgment of 23.08.2011 – B 14 AS 165/10 R).
The repayment obligation, which is the sole determining factor for eligibility for assistance, only takes effect prospectively. Therefore, the revocation of the benefit decision by the family benefits office, in relation to the basic income support provider, merely means that the person receiving assistance is burdened with debt from that point onward. However, such obligations are generally disregarded when determining eligibility for assistance.
Source: socialcourtsability.de
Note:
Similarly – Hessian State Social Court – Judgment of 24 April 2013 – L 6 AS 376/11-; Baden-Württemberg State Social Court – Judgment of 21 March 2012 – L 2 AS 5392/11-; Schleswig-Holstein State Social Court – Decision of 25 May 2010 – L 3 AS 64/10 B PKH
1.8 – North Rhine-Westphalia State Social Court, decision of 21 November 2013 – L 19 AS 1952/13 B ER and – L 19 AS 1953/13 B – legally binding
Guiding principles:
The applicant is not entitled to unemployment benefit II after commencing training as a childcare worker, because the exclusion of benefits under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) applies.
The training as a childcare worker completed by the applicant is not a further training measure within the meaning of Section 81 et seq. of the German Social Code, Book III (SGB III), but rather a training course (cf. regarding the non-applicability of the exclusion criterion of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) when attending a further training measure, Federal Social Court (BSG) judgment of 30 August 2010 – B 4 AS 97/09 R).
The exclusion from benefits pursuant to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) does not raise any constitutional concerns. The legislature is not obligated to guarantee subsistence during vocational training outside of the special system for educational support (Federal Social Court judgment of March 28, 2013 – B 4 AS 59/12 R).
According to the established case law of the Federal Social Court, the existence of "particular hardship" within the meaning of Section 27 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) can be assumed in three categories of cases:
1. A need for assistance has arisen due to a training situation that cannot be covered by BAföG or vocational training assistance, and there is therefore reasonable cause to believe that the training which is about to be completed cannot be finished and that there is a risk of future unemployment.
2. The already advanced and continuously pursued training is jeopardized due to the specific circumstances of the individual case because of a disability or illness.
3. Only an education eligible for funding under the BAföG regulations can be objectively proven to be the only access to the labor market (BSG decision of 23.08.2012 – B 4 AS 32/12 R with further references, judgment of 01.07.2009 – B 4 AS 67/08 R).
These conditions, particularly those of case group 3, are not met. The applicant has not credibly demonstrated that the training objectively represents the only means of accessing the labor market and that the vocational qualification cannot be achieved in any other way, in particular through a vocational training measure (Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book II, in conjunction with Sections 81 et seq. of the German Social Code, Book III).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Aachen, decision of December 5, 2013 (file no.: S 14 AS 1155/13 ER):
Guiding principles of Dr. Manfred Hammel:
The absolute exclusion of EU citizens seeking employment from benefits, as stipulated in Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), is contrary to European law.
This contradicts the legally binding principle of equal treatment agreed between EU member states (Art. 4 Regulation EU 883/2004).
The Citizens' Rights Directive (Directive 2004/38) requires a certain degree of solidarity from the receiving state, Germany, with the other EU member states.
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – North Rhine-Westphalia State Social Court, decision of 25 November 2013 – L 9 SO 441/13 B ER legally binding
Guiding principles:
A social welfare agency is not required to cover electricity debts if there is no ground for an order, i.e., if the applicant is in a current emergency situation that cannot be averted except through judicial intervention.
A debt assumption by the social welfare agency pursuant to Section 36 Paragraph 1 of the German Social Code, Book XII (SGB XII), or its obligation by the social courts in preliminary injunction proceedings, only becomes necessary if all reasonable options available to the benefit recipient to secure a continuation of the energy supply have been exhausted without success (cf. in this regard the decision of the Higher Social Court of North Rhine-Westphalia of September 3, 2013 – L 19 AS 1422/13 B ER – concerning the parallel regulation of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II)).
In light of Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII), and in particular the existence of readily available self-help options, all available resources and possibilities must first be exhausted before public assistance, such as the granting of a loan or debt repayment assistance, may be claimed. This applies especially to the assumption of outstanding energy costs, as the benefit provider would otherwise become a "guarantor of the energy supply companies.".
Source: socialcourtsability.de
3.2 – Baden-Württemberg State Social Court, decision of 28 October 2013 – L 2 SO 1510/13 NZB
Guiding Principles:
The legal question of whether the granting of benefits for accommodation and heating under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), based on the indeterminate legal concept of "appropriateness" stipulated therein, satisfies the parliamentary reservation requirement, is not of fundamental importance, as a change in the jurisprudence of the Federal Social Court is not to be expected. The Federal Constitutional Court has already addressed this question – albeit not explicitly – in its decisions of February 9, 2010 (1 BvL 1/09) and September 27, 2011 (1 BvR 232/11) and approved the approach of the Federal Social Court. Therefore, it can be assumed that Section 22 Paragraph 1 of the SGB II is considered constitutional by the Federal Constitutional Court.
Source: socialcourtsability.de
4. Dr. Wolfram Viefhues, Further Supervising Judge: Reform of legal aid
as of
New regulations regarding legal aid (Law Amending the Law on Legal Aid and Advice of August 31, 2013 – Federal Law Gazette I 2013, 3533) entered into force on January 1, 2014. The previous law remains applicable if a party applied for legal aid for a particular instance of litigation before January 1, 2014. Enforcement proceedings are considered a separate instance of litigation.
This article aims to provide an overview of the new regulations that are particularly relevant for legal practice (for a detailed discussion of the reform, see Giers, FamRZ 2013, 1341; Viefhues, FuR 2013, 488; Zempel, FF 2013, 275).
For practical purposes, a distinction must be made between the approval process and the procedure following the court's decision on legal aid. Significant changes arise for the legal representative, particularly at this stage.
Further information: juris – Reform of legal aid as of January 1, 2014, here is the article: www.juris.de
5. Administrative Court Neustadt, decision of December 17, 2013 – 4 K 918/13.NW –
"Jobcenter": German enough
The term "Jobcenter" does not violate the principle that the official language is German.
Source: Press release from the Neustadt Administrative Court dated December 19, 2013, link here: www.mjv.rlp.de
Note:
The term "Jobcenter" is compatible with the principles of official German language, according to a recent article in the Neue Juristische Wochenschrift (New Journal of Law), available here: rsw.beck.de
6. Written inquiry from Ms. Katja Kipping to the Federal Government in December 2013 regarding the repayment of rental deposits under the German Social Code, Book II (SGB II), with reference to the Federal Social Court (BSG) ruling of March 22, 2012, B 4 AS 26/10 ER:
Response from the Federal Government: s1.directupload.net (pdf )
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
We wish all readers a Merry Christmas and peaceful holidays.
