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 18 December 2013 – L 13 AS 161/12
Guiding principles (Juris):
The provision in § 32 SGB II, which stipulates that in the event of a failure to report, the standard benefit will be reduced by 10% if, despite written notification of the consequences, the person seeking assistance fails to comply with a request to report without good reason, does not raise any constitutional concerns.
The indeterminate legal concept of "important reason" is a sufficient corrective with regard to the mandatory legal consequence provided for in the norm.
A proportionality test, not provided for in the law, is not permitted in cases of mistakenly overlooking the reporting deadline (contrary to the ruling of the Social Court of Chemnitz of 6 October 2011 – S 21 AS 2853/11).
Source: www.rechtsprachung.niedersachsen.de
1.2 – Saxony State Social Court, Judgment of July 18, 2013 – L 3 AS 910/13 ZVW – newly opened appeal proceedings from the Federal Social Court (BSG), Judgment of December 11, 2012 (Case No. B 4 AS 27/12 R)
Headnotes (Author):
Necessary expenses related to generating income can be deducted from income (cf. Section 11 Paragraph 2 Sentence 1 No. 5 SGB II old version). In the case of work performed away from home, these can primarily be the expenses for additional meal allowances (cf. BSG, Judgment of December 11, 2012, paragraphs 24 et seq.). In the present case, other necessary or actual expenses of long-distance driving activities, such as accommodation or incidental travel expenses, are also relevant.
Source: socialcourtsability.de
1.3 – Bavarian State Social Court, decision of 04.12.2013 – L 11 AS 697/13 B ER
Legal principles (Juris):
Sanction notices are not invalid.
Source: socialcourtsability.de
1.4 – Bavarian State Social Court, decision of 05.12.2013 – L 11 AS 679/13 B ER
Guiding principles (Juris):
No entitlement to an abstract assurance regarding the reimbursement of application and travel expenses.
No entitlement to additional needs benefits under Section 21 Paragraph 4 of the German Social Code, Book II (SGB II), exists if no participation benefits are provided.
Source: socialcourtsability.de
1.5 – Bavarian State Social Court, Judgment of 09.12.2013 – L 7 AS 965/11
Guiding Principles (Juris):
There is no admissible type of action for reviewing the legality of the circumstances of an official medical examination. A declaratory action pursuant to Section 55 Paragraph 1 No. 1 of the Social Court Act (SGG) is also inadmissible because it does not concern specific rights that are being asserted or contested.
Source: socialcourtsability.de
Court's note:
The recipient's cooperation in the medical examination – including completing the health questionnaire – is mandated by Sections 60 et seq. of the German Social Code, Book I (SGB I). The job center can respond to the recipient's refusal to cooperate by denying unemployment benefit II.
1.6 – Bavarian State Social Court, Judgment of 13 November 2013 – L 16 AS 270/13
Legal Principles (Juris):
While legal proceedings to review the granting of benefits under Section 44 of the German Social Code, Book X (SGB X) are pending, a new application under Section 44 SGB X is not possible. Such an application can only be validly submitted once the legal proceedings have been concluded with final and binding effect.
Source: socialcourtsability.de
1.7 – Schleswig-Holstein State Social Court, Decision of 31.10.2013 – L 6 AS 230/13 B ER – legally binding
Headnotes (Author)
If an applicant considers an administrative act that has become legally binding to be unlawful because it was based on facts that have proven to be incorrect, he may be required to at least name the erroneous facts or to present new facts that, as a whole, lead to a different set of facts.
Unless it is readily apparent which facts forming the basis of the previous administrative act are incorrect, further investigations of the facts cannot be demanded by the administration and the courts, because despite the official investigation provided for in Section 20 Paragraph 1 of the German Social Code, Book X (SGB X) and Section 103 of the German Social Courts Act (SGG), authorities and courts are not obliged to conduct investigations without any basis.
Source: socialcourtsability.de
1.8 – North Rhine-Westphalia State Social Court, decision of 20 January 2014 – L 19 AS 2306/13 B ER – legally
principles (author):
The job center is not obligated to transfer benefits under the German Social Code, Book II (SGB II), which have been transferred to a garnished account, to a non-garnishable account of the benefit recipient's mother.
Benefits for periods prior to the application cannot generally be granted in preliminary injunction proceedings. Only in exceptional cases, where the denial of the requested benefit in the past continues to have an impact on the present and consequently results in an ongoing emergency, can an exception be made to this principle. No considerations are apparent that would justify a departure from this principle in this particular case.
There are (considerable) doubts as to the existence of a claim for an injunction in the sense of a claim for benefits that would likely be enforceable in the main proceedings. This is because the claim for additional needs benefits due under the German Social Code, Book II (SGB II), has likely been extinguished by performance (pursuant to Section 362 of the German Civil Code (BGB)), since the Jobcenter (JC) has transferred the benefits to the applicant's account. Contrary to the applicant's assumption, the fact that a benefit is transferred to a garnished account does not preclude the effect of performance. It is neither the responsibility of the JC to examine whether and to what extent the applicant's accounts are subject to garnishment, nor is there any obligation to shield back payments from the access of creditors, which is exclusively overseen by the competent enforcement court.
Therefore, the claim for damages asserted in the appeal proceedings is inadmissible as a basis for the request for further payment. Moreover, according to the applicant's submissions, this claim for damages is likely a claim for official liability under Section 839 of the German Civil Code (BGB) and Article 34 Paragraph 3 of the German Basic Law (GG), for which the only recourse is through the ordinary courts (Section 17 Paragraph 1 Sentence 2 of the Courts Constitution Act (GVG)).
Source: socialcourtsability.de
1.9 – Hessian State Social Court, decision of 24 October 2013 – L 6 AS 476/13 B ER
Guiding principles (author)
: Sales proceeds (here dog breeding) that are not exhausted by asset restructuring are also generally considered income; the question of the expenses incurred to generate these proceeds concerns the deduction according to § 11b SGB II.
A recipient of benefits under the German Social Code, Book II (SGB II), bears the burden of proof and must provide evidence regarding their need for assistance.
There are no objections to basing the negative decision primarily on the photos copied and examined following the job center's Facebook search. The corresponding data collection is lawful under Section 67a Paragraph 2 of the German Social Code, Book X (SGB X).
Source: socialcourtsability.de
Note:
See SG Hannover, judgment of 03.09.2013 – S 54 AS 3165/10
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Altenburg, decision of 20.12.2013 – S 42 AS 4241/13 ER
Guiding principles (author):
No sanction without a revocation notice. The approval notice must be amended in accordance with Section 48 of the German Social Code, Book X (SGB X).
The successor provision to Section 31b Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), which has been in force since April 1, 2011, does stipulate that "the entitlement to payment is reduced," but this does not necessarily imply that a cancellation decision is unnecessary.
However, a reduction in benefits will only occur if the grant notice is amended pursuant to Section 48 of the German Social Code, Book X (SGB X). Benefits under the German Social Code, Book II (SGB II) are permanent administrative acts whose legal force is only broken by contrary revocation decisions. Section 31b, Paragraph 1 of the SGB II merely regulates the sanction period.
Furthermore, Section 31b Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is not to be understood as a specific provision regarding the revocation rule. The legislator has thus far refrained from regulating this procedural issue.
Source: Information letter SGB II Briefs for practitioners 01/2014 – by lawyer Corinna Unger from Gera
Note:
The Hessian State Social Court (LSG) reached the same conclusion in its decision of December 3, 2013 – L 9 AS 614/13 B ER, the Kassel Social Court (SG Kassel) in its decision of June 27, 2013 – S 7 AS 121/13 ER, the Lower Saxony State Social Court (LSG NSB) in its decision of June 17, 2013 – L 7 AS 332/13 B ER, and the Bavarian State Social Court (Bayrisches LSG) in its decision of June 17, 2013 – L 11 AS 306/13 B ER, which addresses this controversial legal question in detail; the Detmold Social Court (SG Detmold) held a different view in its judgment of October 17, 2013 – S 18 AS 1095/12.
2.2 – Social Court Lüneburg, Judgment of 13 November 2013 – S 37 AS 844/10 – legally binding
Guiding Principles (Author):
A sanction notice for alleged failure to apply for jobs by the benefit recipient is unlawful because the burden of proof lies with the job center. In the event of a lack of evidence, the principle of objective burden of proof should apply. According to this principle, the consequences of a lack of evidence fall on the party who invokes a specific element of the offense.
Source: Social Court Lüneburg, November 13, 2013 – S 37 AS 844/10: Judgment (legally binding) on sanctions for alleged failure to apply for jobs + Other matters
Everything here: Legally binding ruling on sanctions for alleged failure to apply for jobs + other matters – Unemployed Forum Germany, with PDFs of the decisions attached on the above-mentioned page. Link here: www.elo-forum.org
2.3 – Social Court Darmstadt, decision of 17 January 2014 – S 19 AS 6/14 ER
Guiding Principles (Author)
: Direct payment to the landlord and the energy supplier based on Section 22 Paragraph 7 of the German Social Code, Book II (SGB II) constitutes a factual act. At least according to the currently applicable version of the regulations on direct payment, which came into force on April 1, 2011, and is based on the Act on the Determination of Standard Needs and the Amendment of the Second and Twelfth Books of the German Social Code, this payment, even if made against the will of the person concerned (Section 22 Paragraph 7 Sentences 2 and 3 SGB II), does not constitute an administrative act. Section 22 Paragraph 7 Sentence 4 SGB II expressly provides (only) for informing the benefit recipient about the direct payment; however, this is merely a notification; a declaration of intent that would have to be communicated to the person concerned is not required.
Direct payments to landlords and energy suppliers are therefore limited to the benefits provided for accommodation and heating. Any amounts paid to these entities beyond this scope are not suitable for settling the benefit claim. The beneficiary's claim remains valid; they can therefore demand (another) payment (this time to themselves).
Source: socialcourtsability.de
Note:
See Bavarian State Social Court, decision of 24 October 2012, L 7 AS 692/12 B ER – It is disputed whether the stipulation of a direct transfer to the landlord pursuant to Section 22 Paragraph 7 of the German Social Code, Book II (SGB II) is an administrative act, a supplementary provision to an administrative act, or merely a reference to a factual act.
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Saxon State Social Court, decision of 05.04.2013 – L 8 SO 93/12 B ER
Guiding principles (author):
The standard allowance of EUR 306.00 (standard allowance level 3) is sufficient to cover the socio-cultural minimum subsistence level; there are no constitutional concerns regarding its amount or the procedure for its determination and updating (cf., as a reference point for the standard allowance of a single person, Federal Social Court, judgment of 12 July 2012 – B 14 AS 153/11 R).
The fact that the applicant is granted only 80% of the standard benefit rate 1, i.e., only a fraction of the needs of a single person, is also not objectionable under constitutional law (see the Senate's judgment of January 23, 2013 – L 8 SO 13/11). This is because the tiered standard benefit rate is based on the consideration that, in shared households, savings (so-called economies of scale) justify the assumption of lower needs. Household savings in multi-person households are undisputed and were confirmed by the Federal Constitutional Court in its judgment of February 9, 2010 – 1 BvL 1/09 et al. – as they have lower expenditures for household-related expenses than the sum of the corresponding number of single-person households.
Source: socialcourtsability.de
3.2 – LSG Schleswig-Holstein, Judgment of November 27, 2013 (Case No.: L 9 SO 16/11):
Guiding principles of Dr. Manfred Hammel:
If a severely disabled person is dependent on the use of their own motor vehicle to attend school, the responsible social welfare agency must provide benefits in accordance with Section 8 of the Integration Assistance Ordinance, provided that the applicant cannot reasonably be expected to use public transport due to their disability.
The same applies if a disabled person regularly participates in sports at a near-professional level. For disabled individuals in particular, physical activity represents a form of participation in society and also benefits their physical and mental health (Section 11, Paragraph 2, Sentence 2 of the German Social Code, Book XII). This, in turn, leads to a mitigation of the consequences of the disability.
4. Decisions on asylum law
4.1 – Berlin-Brandenburg State Social Court, decision of 10 December 2013 – L 15 AY 23/13 B ER – legally binding
Guiding principles (author):
At least until a new regulation is enacted by the legislator, reduced benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are not an option.
Source: socialcourtsability.de
Note:
LSG Berlin-Brandenburg reached the same conclusion in its decision of February 6, 2013, case number L 15 AY 2/13 B ER.
5. Bavarian State Social Court: No benefits without a connection to the German labor market (unemployment insurance)
Periods of employment in other EU countries do not necessarily establish an entitlement to unemployment benefits in Germany. If there is no current connection to the German labor market, unemployment benefits cannot be granted, the Bavarian State Social Court ruled in the context of legal aid proceedings.
Source: Press release from the Bavarian State Office for Social Security (LSG) dated January 23, 2014, link here: www.lsg.bayern.de
Full text of the decision of the Bavarian State Social Court, judgment of 11 December 2013 – L 9 AL 198/13 B PKH – here: sozialgerichtsbarkeit.de
6. PKH-fix (Freeware) – Calculation of legal aid according to § 115 of the German Code of Civil Procedure (as of January 21, 2014)
PKH-fix calculates the legal aid installments based on the applicant's regular income and expenses, or determines eligibility for installment-free legal aid. The relevant standard rates and allowances are taken into account, also for the partner and up to four dependents. Print and export functions are available.
PKH-fix – Legal Aid Calculation, here is the link: www.pkh-fix.de
7. 24.1.2014: New forms for legal aid and legal cost assistance
Following the reform of the laws governing legal advice assistance (BerHi) and legal aid for court proceedings (PKH), new forms have been mandatory since January 9, 2014 (BerHi) and January 22, 2014 (PKH). The forms can still be filled out by hand. They are also available as PDF files that can be filled out and saved directly on your computer. The forms are available for download from our website. [Information and form for BerHi] [Information and form for PKH] (rr)
Source: www.socialrecht-in-freiburg.de
8. Oil is becoming increasingly expensive – heating costs are rising three times faster than incomes.
Consumer spending on space heating and hot water rose by 43 percent between 2002 and 2012. Low-income earners are particularly affected by this trend. This means that heating costs in Germany have increased almost three times as much as private household incomes since 2002, as nominal wages grew by only 17 percent during the same period. This information comes from a response by the German government to an inquiry from the Green Party parliamentary group, which is available to our newspaper.
Source: RP Online: www.rp-online.de
9. Hartz IV monitoring is being abolished – The Federal Employment Agency backtracks
Recipients of Hartz IV benefits will no longer be subjected to surveillance by private investigators. A clause in an official directive will be removed. This reversal came after the German Unemployed Forum threatened legal action against the covert surveillance of Hartz IV recipients.
Source: Frankfurter Rundschau, link here: www.fr-online.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
