1. Decisions of the Federal Social Court of 22.08.2013 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 22.08.2013 – B 14 AS 1/13 R
Guiding principles (author):
Collected sales tax, which under tax law only represents a pass-through item, must be used as readily available funds to cover living expenses unless it can be proven that it was also paid during the period of need.
Supplementary principle (Thomé):
For self-employed individuals, reference can only be made to a future expected inflow of funds if current needs are met; however, the current and unavoidable subsistence needs of the benefit recipient must always be met. In cases of objectively unclear future income – as with salaried benefit recipients with fluctuating income – the agency is obligated to grant a provisional approval to avert immediate need for assistance. In cases of doubt, a loan must be granted in accordance with Section 23 Paragraph 4 of the German Social Code, Book II (SGB II) (old version) / Section 24 Paragraph 4 of the German Social Code, Book II (SGB II) (new version).
Section 3, paragraph 4 of the 2008 Regulation on Unemployment Benefit II (Alg II-V 2008), insofar as it applies to the final granting of benefits to secure subsistence, does not violate any higher-ranking law. While the general principle of considering income under the German Social Code, Book II (SGB II), is a monthly assessment, as follows from the overall context of the regulations in the law and as now expressly stipulated in Section 11, paragraph 2, sentence 1 of the SGB II, a modification of this monthly accrual principle by the Alg II-V 2008 is permissible in principle. However, there are limits to the consideration of "fictitious" income.
Even self-employed individuals (unless the scope of the loan regulation applies, cf. Section 23 Paragraph 4 of the German Social Code, Book II, old version) can only be referred to a future expected inflow of funds if at least a provisional benefit award sufficiently secures their current livelihood. If a self-employed benefit recipient submits an application to the job center for benefits to secure their livelihood, citing a lack of funds to cover their current needs, the agency is obligated to grant a provisional award to avert immediate need for assistance, provided their future income situation is objectively unclear – just as with salaried benefit recipients with fluctuating income. While future income can be estimated in a provisional award, the primary requirement is that the provisional award must cover the benefit recipient's current and unavoidable needs for subsistence.
In conjunction with this regular obligation to grant provisional benefits, the consequences regulated in Section 3 Paragraph 4 of the 2008 Ordinance on Unemployment Benefit II (Alg II-V 2008) prove to be constitutional. It does not violate Article 1 in conjunction with Article 20 of the Basic Law (GG) if, in the final decision on benefits, adjusted income is allocated evenly over six months; this corresponds to the usual business practices of self-employed individuals and does not require any conduct that contradicts the principles of basic income support law.
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of 23 August 2013 on social assistance (SGB XII)
2.1 – BSG, Judgment of 23.08.2013 – B 8 SO 7/12 R
Guiding principles (author):
Social welfare providers must exercise discretion when asserting liability against heirs.
Although the social welfare provider is entitled, in the case of an estate, to claim the entire amount of the claim from each co-heir as joint and several debtor by way of liability of the heirs; in this respect, the liability of the heirs is not limited to cases in which the testator was already the owner of the assets that existed at the time of the inheritance at the time of the granting of social welfare.
However, the social welfare provider regularly has discretion to determine which joint debtor and in what amount it demands reimbursement of costs from them.
Source: juris.bundessocialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – State Social Court of Hamburg, Judgment of 22 October 2013 – L 4 AS 60/12
(Author's guiding principles)
A benefit recipient is not entitled to additional needs allowances for disabled persons pursuant to Section 21 Paragraph 4 of the German Social Code, Book II (SGB II) when participating in a measure that does not show a direct connection to obtaining a suitable job.
The "other assistance" must go beyond what the job center is assigned as a general support task under Section 14 Paragraph 1 of the German Social Code, Book II (SGB II). Since the "other assistance" is listed alongside the benefits under Section 33 of the German Social Code, Book IX (SGB IX) in Section 21 Paragraph 4 of the SGB II, a certain equivalence of these benefits is required. This means that the other assistance must not fall short of the qualitative requirements for the specific measures named in Section 21 Paragraph 4 of the SGB II, in particular the assistance under Section 33 of the SGB IX. Furthermore, the other assistance must be different from that provided for in Section 33 of the SGB IX; otherwise, there would have been no need for their explicit listing side-by-side in the legal text (see also the judgment of the Higher Social Court of Saxony-Anhalt of March 22, 2012 – L 2 AS 25/10).
According to this understanding, the inclusion of the term "other assistance" serves to create a certain openness to the development of assistance forms and the possibility of promoting new forms not yet mentioned in the relevant regulations by granting an additional allowance. It follows that the activation and vocational integration measure approved here – as per Section 46 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III) – cannot be considered "other assistance" within the meaning of Section 21 Paragraph 4 of the German Social Code, Book II (SGB II), due to the fact that Section 33 Paragraph 3 Number 1 of the German Social Code, Book IX (SGB IX) also expressly provides for such assistance.
Source: sozialgerichtsbarkeit.de
Note:
Cf. BSG, Judgment of 6 April 2011 – B 4 AS 3/10 R – Whether a measure is one for participation in working life that can trigger an additional needs benefit under the German Social Code, Book II (SGB II), is decided, if it is a regular measure, according to its content and focus.
3.2 – Berlin-Brandenburg State Social Court, Judgment of 04.12.2013 – L 14 AS 449/10
Guiding principles (author)
on the need for costs of accommodation/heating (Kdu/H) due to an inheritance contract, among other things, for a partially self-occupied condominium.
Any payment obligation must be considered an expense for accommodation, the non-fulfillment of which would give the creditor a right to demand eviction from the apartment, and the underlying legal transaction concerns the provision of living space; correctly stated by the Social Court of Mainz, judgment of May 10, 2013 – S 17 AS 751/12.
A need within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) does not arise only in the event of some kind of imminent loss of housing. A need for housing and utilities (KdU/H) exists for (monetary) expenses that the benefit recipient is obligated to pay to third parties under civil or public law during the benefit period for the use/provision (here Senate, decision of July 25, 2006 – L 14 B 224/06 AS ER) of specific accommodation. This is the case with regard to the 1/10 share of ownership held by the stepbrother residing in the USA. The benefit recipient also uses this share of ownership and is therefore required to make the payment agreed upon in the notarized contract once a year (in August of each year).
Source: socialcourtsability.de
3.3 – Berlin-Brandenburg State Social Court, Judgment of 10 January 2014 – L 34 AS 1036/13
Guiding principles (author):
The mother of a benefit recipient under the German Social Code, Book II (SGB II), must provide information to the job center about her income and assets despite serious misconduct by her son, such as the crimes committed – theft, insult, assault and death threats.
A maintenance claim of the benefit recipient (son) against – his mother – pursuant to Section 1601 of the German Civil Code (BGB) in conjunction with Section 1589 Paragraph 1 Sentence 1 of the German Civil Code (BGB) is not excluded, because theft or insult offenses – regardless of the specific form of commission – do not constitute a serious offense and therefore certainly not a gross injustice.
Both offenses, according to their sentencing guidelines, fall into the category of lower or middle-level crime and are also (absolutely) dependent on a formal complaint. The same applies to the alleged death threat.
According to Section 1611 Paragraph 1 Sentence 1 of the German Civil Code (BGB), in the case of a serious intentional offense by the person entitled to maintenance, the maintenance claim generally remains in effect; it is merely limited in amount to what is equitable. A complete elimination of the obligation under Section 1611 Paragraph 1 Sentence 2 of the BGB is only possible if enforcing the obligation on the person liable would be grossly unfair. The wording of the law indicates that a complete elimination is intended to be the exception.
Source: socialcourtsability.de
3.4 – Bavarian State Social Court, Judgment of 11 November 2013 – L 7 AS 401/13
Guiding Principles (Author):
Whether the new wording of Section 31b Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), according to which a sanction only reduces the entitlement to payment, means that a sanction constitutes a single subject of dispute need not be decided here. A lawsuit was not even filed.
The fact that the instructions on legal remedies also contain the provisions of Sections 92 and 93 of the Social Court Act (SGG) does not render them incorrect within the meaning of Section 66 Paragraph 1 of the SGG. The panel no longer adheres to the contrary case law established in the decision of February 6, 2012, L 7 AS 21/12 B ER.
An application for preliminary legal protection does not generally constitute a lawsuit, nor does it generally constitute an objection (see decision of the Bavarian State Social Court of April 11, 2011, L 7 AS 214/11 B ER; contra, regarding the most-favored-nation principle, Hölzer in info also 2010, p. 101). These are two entirely different things. In preliminary proceedings, the aim is to obtain swift, temporary emergency aid from the court, while a lawsuit seeks a final resolution of the legal dispute. A lawsuit is preceded by administrative proceedings and preliminary proceedings; preliminary proceedings are generally possible even without an administrative decision.
Source: socialcourtsability.de
3.5 – Lower Saxony-Bremen State Social Court, Decision of April 4, 2012 – L 15 AS 77/12 B ER
Preliminary legal protection – Order for the suspensive effect of the objection – Basic income support for job seekers – Integration agreement – Illegality of individual provisions of a replacement decision – Insufficient determination of benefits for application costs
Guiding Principles (Juris):
According to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Act (SGG), the suspensive effect of an objection must generally be ordered in its entirety if individual provisions of an integration administrative act pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) prove to be unlawful. An integration agreement or an administrative act replacing it represents the instrument of an integration strategy tailored to the individual case, comprising a multitude of coordinated measures. Therefore, the assumption required for the severability of such an administrative act—namely, that the authority would have issued it even without the provisions recognized as unlawful—is generally not justified.
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Berlin, Decision of 09.01.2014 – S 180 SF 408/13
Principle (Juris):
A natural person who is joined as a party in proceedings pursuant to Section 197a of the Social Courts Act (SGG) and whose personal appearance at a hearing has been ordered by the court is entitled to compensation under the Judicial Remuneration and Compensation Act (JVEG).
Source: socialcourtsability.de
4.2 – SG Stade, decision of 21.01.2013 – S 6 AS 145/13 ER
Guiding principle of attorney Jens Hake:
Learning support according to § 28 SGB II even in the case of a foreseeable longer-term need.
Source: Attorney Jens Hake, Salztorswall 5a, 21682 Stade, see decision here: s7.directupload.net
Note:
Higher Social Court of North Rhine-Westphalia, decision of 20 December 2013 – L 19 AS 2015/13 B ER and Social Court of Schleswig, decision of 11 December 2013 – S 22 AS 177/13 ER, held the same view.
5. Juris – Commentary on: BSG 4th Senate, Judgment of 23.05.2013 – B 4 AS 67/12 R
Author: Prof. Dr. Yasemin Körtek, Attorney at Law and Specialist in Social Law
Deviation from the headboard principle in case of accommodation and heating requirements
Principle:
If a sanction imposed by a social security institution (SGB II) against a member of the household is linked to the loss of benefits for accommodation expenses, this can justify a deviation from the "per capita principle" and higher benefits for accommodation costs to the other members of the household.
Guiding principle for the comment:
Needs-related reasons necessitate a deviation from the head-of-household principle if the share of a member of the household under the age of 25 in the expenses for accommodation and heating has been eliminated due to repeated breaches of duty.
Source: www.juris.de
6. Social Court Dortmund, Decision of 22 January 2014 – S 19 AS 5107/13 ER
Hartz IV for Spanish family in expedited proceedings – Jobcenter Märkischer Kreis loses again before the Dortmund Social Court.
Source: Dortmund-City – lokalkompass.de, link to the source: www.lokalkompass.de
7. AZF II: Guide to Work Permit Law for Refugees and Migrants, 4th updated edition, 12/2013, Refugee Council of Lower Saxony
. The updated guide regarding access to the labor market for refugees and migrants was prepared by Claudius Vogt, an employee of GGUA in Münster, for the Lower Saxony network of initiatives for the right to remain. The guide can be downloaded from the AZF II website. The update takes into account all legislative changes relevant to labor market access for third-country nationals and EU citizens that came into force no later than December 1, 2013.
Source: azf2.de (pdf)
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
