1. Decisions of the Federal Social Court of 12 December 2013 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 12.12.2013 – B 4 AS 6/13 R
Additional costs for orthodontic care – additional needs in case of unavoidable ongoing special needs – health insurance benefits law – lack of medical necessity for additional treatment
Guiding principles (author):
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.
If the health insurance company has rejected the claim, subsistence-level benefits may be considered to cover the remaining needs. The specific conditions under which this is possible are not yet fully defined. In any case, benefits are not granted if the claimant does not claim any costs due to their illness that exceed what is provided for other healthcare costs in the standard allowance, and if the statutory health insurance covers the costs of medically necessary treatment.
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of 12 December 2013 on social assistance (SGB XII)
2.1 – BSG, Judgment of 12.12.2013 – B 8 SO 13/12 R
Social assistance – emergency aid – reimbursement claim of a hospital operator for inpatient hospital treatment – requirement for the existence of an urgent case – obligation to inform the social assistance provider in a timely manner and to verify the circumstances essential for cost certainty
Guiding principles (author):
No entitlement to reimbursement of expenses as an emergency aid worker according to § 25 SGB XII.
Emergency assistance requires not only that immediate help is necessary based on the circumstances of the individual case, but also that the person providing emergency assistance cannot be accused of failing to inform the social welfare agency immediately. The applicant failed to do so, even though it was both possible and reasonable for her to do so.
Source: juris.bundessocialgericht.de
Note:
See BSG, judgment of 30.10.2013, B 7 AY 2/12 R – The regulation of social assistance law concerning the entitlement of an emergency helper to reimbursement of his expenses does not apply analogously in asylum seeker benefits law.
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Rhineland-Palatinate State Social Court, decision of 24 February 2014 – L6 AS 73/14 B ER
Guiding principles (author):
Suspensive effect of the objection against the administrative act replacing an integration agreement, since the SGB II benefit provider did not exercise discretion regarding the question of whether an integration agreement should be replaced by an administrative act.
Section 15, paragraph 1, sentence 6 of the German Social Code, Book II (SGB II) is a mandatory provision, meaning that, as a rule, the SGB II benefits provider must issue an administrative act replacing the integration agreement if the integration agreement cannot be concluded. However, deviations from this are possible in atypical exceptional cases. Accordingly, in such a case, the benefit provider must exercise discretion as to whether an administrative act should be issued and must also provide a corresponding justification for this in the administrative act then issued (see also LSG Saxony-Anhalt, judgments of 16.04.2013 – L 5 AS 89/12, L 5 AS 90/12 and L 5 AS 91/12; see also LSG North Rhine-Westphalia, decision of 09.12.2013 – L 2 AS 1956/13 B ER, which generally considers the issuance of a replacement administrative act to be a subsidiary course of action limited to atypical situations and subject to the administration's discretionary powers).
In the case of the benefit recipient, an atypical special case must be affirmed because the benefit provider could not simply conclude from the lack of response of the benefit recipient to the submitted draft integration agreement that the person in need of assistance refused to conclude an integration agreement.
The full text of the decision can be found here: s7.directupload.net (pdf)
Note:
Social Court Detmold reached the same conclusion in its decision of September 9, 2013 – S 28 AS 1488/13 ER
3.2 – Bavarian State Social Court, judgment of 30 January 2014 – L 7 AS 84/13 and – L 7 AS 85/13 – The appeal on points of law is admitted.
Guiding Principles (Author):
A sanction notice constitutes an isolated subject of dispute, because the legal situation changed on April 1, 2011, according to the revised versions of Sections 31b and 39 No. 1 of the German Social Code, Book II (SGB II) (the date of the breach of duty is decisive according to Section 77 Paragraph 12 SGB II). Therefore, only an isolated action for annulment is admissible, within which only the legality of the sanction is examined. Systematically, this represents a special regulation.
Insofar as individual state social courts have adhered to the previous subject matter of the dispute in decision-making proceedings, the decisions do not reflect any engagement with the change in the law (e.g., LSG NS-Bremen, decision of 17.06.2013, L 7 AS 332/13 B ER and LSG NRW, decision of 04.03.2013, L 19 AS 1688/12 B).
Even where the literature adheres to the previous point of contention (e.g., Knickrehm/Hahn in Eicher, SGB II, 3rd edition 2013, § 31b para. 7 and 8 and Valgolio in Hauck/Noftz, § 31b para. 2), this is not convincing. The assertion that the SGB II does not distinguish between the entitlement to benefits and the entitlement to payment is no longer accurate following the amendment to the law.
Accordingly, the literature argues in favor of the isolated subject of dispute of the sanction (Groth et al., Das neue Grundsicherungsrecht, 2011, Rn 421; M. Mayer in Oestreicher, SGB II / SGB XII, Loose-leaf edition).
Source: socialcourtsability.de
3.3 – Saxon State Social Court, Judgment of 14 March 2013 – L 3 AS 748/11 – pending before the Federal Social Court under file number: B 4 AS 3/14 R
Does the “per capita principle” also apply to the approval or revocation of a loan-based assumption of rent arrears pursuant to Section 22 Paragraph 5 of the German Social Code, Book II (SGB II aF) (now Section 22 Paragraph 8)?
Guiding principle (NWB database)
1. When deciding on the form of rent arrears assumption, the effects of the loan on the future willingness and ability to integrate into the labor market or the future prospects of the person concerned may be significant.
2. Depending on the extent of the individual's contribution to the debt, it may be possible that, in exceptional cases, not only a loan but also a grant should be awarded to cover the rent arrears. However, this is not applicable if the benefits were correctly approved in the appropriate amount and only the payment procedure was flawed, because otherwise the employable person in need of assistance would receive at least partial double payments for accommodation and heating.
3. An error by a benefit provider that does not affect the correctly approved and paid housing allowance is not sufficient to establish a claim for the assumption of rent arrears in the form of a grant/subsidy. Section 22 Paragraph 5 Sentence 4 of the German Social Code, Book II (SGB II) in its former version does not constitute a sanction provision for misconduct by a benefit provider.
4. a) One possibility is to grant the assumption of rent arrears as a contribution/subsidy to offset the financial burdens incurred by the person concerned. However, it is questionable whether the legislator intended and whether it is justified in substance to treat the provision in Section 22 Paragraph 5 Sentence 4 of the German Social Code, Book II (SGB II) (old version) as a further basis for compensation alongside other options such as claims for official liability or claims for restitution under social law.
b) A social court is prohibited from correcting a decision of a civil court in an official liability case, even if it considers it to be erroneous, within the framework of a decision pursuant to Section 22 Paragraph 5 Sentence 4 of the German Social Code, Book II (SGB II) as amended.
5. The question of whether a decision may be served on a member of the household as presumed representative for the other members must be separated from the question of whether the decision is addressed to the other members of the household and whether it is sufficiently specific in this respect within the meaning of Section 33 Paragraph 1 of the German Social Code, Book X (SGB X).
6. There is no apparent legal basis that would authorize a job center to grant a loan to only one member of a household receiving benefits, in connection with the assumption of rent arrears affecting all members of that household.
Source: treffer.nwb.de
3.4 – State Social Court of Saxony-Anhalt, Judgment of 25 July 2013 – L 2 AS 470/11
Guiding principles (author)
: The claims of the deceased wife of the applicant are inheritable.
The relevant general provisions of the First Book of the Social Code – General Part (SGB I) in Sections 58 and 59 SGB I also apply to the Second Book of the Social Code (SGB II). The provision on special legal succession in Section 56 SGB I also applies.
Under Section 44 of the German Social Code, Book X (SGB X), the affected person is entitled to the benefits to which they would have been entitled under substantive law (Federal Social Court, Judgment of June 1, 2010 – B 4 AS 78/09 R). Therefore, back payments for periods of hardship must be made even if the hardship no longer exists. It follows that there is no impediment to the inheritability of due claims.
Source: socialcourtsability.de
Note:
See LSG Hamburg, judgment of 14.06.2013 – L 4 SO 35/12 – The son, as the legal successor of his deceased mother, can in principle assert a claim against the social welfare agency for the assumption of rent arrears, since in the present case this claim is inheritable.
3.5 – LSG NRW, Decision of February 24, 2013 – L 12 AS 2319/13 B ER and L 12 AS 2320/13 B – legally binding.
Headnotes (Author):
The case law on the head-of-household principle leads, in individual cases, but even more so to the regulation in Section 9 Paragraph 5 of the German Social Code, Book II (SGB II), to the situation that applicants are dependent on the support of their adult daughters living in the household to cover their needs, even though there is – possibly – no legal obligation for these daughters to provide maintenance. However, this consequence was consciously accepted by the Federal Social Court (BSG) in developing the case law and also by the legislature in enacting the regulation.
According to established case law of the Federal Social Court (BSG), the costs for accommodation and heating are generally to be divided proportionally per capita, regardless of age or intensity of use, if those in need of assistance – as in this case – share accommodation with other persons (see, e.g., BSG judgment of August 22, 2013, B 14 AS 85/12 R). For the purposes of this division, it is irrelevant who owes the rent and who actually uses which part of the apartment. In the present case, this means that only one-quarter of the total costs for accommodation and heating are to be included in the calculation of the applicants' individual needs. The applicants cannot, therefore, generally claim reimbursement for the shares attributable to the two other daughters of the applicant; the shares attributable to the adult daughters are not taken into account as increasing the needs of the members, even if they are not members of the household.
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – SG Hamburg, decision of 19.12.2013 – S 26 AS 3870/13 ER – legally binding
Guiding principles (Attorney Matthias Butenob):
A “special hardship” within the meaning of Section 27 Paragraph 4 Sentence 1 SGB II can exist if school education is already 3/4 completed and the school leaving certificate (here: secondary school leaving certificate) after consideration of all circumstances not only facilitates access to the labor market, but is necessary to enable the applicant to access it in the first place.
This applies all the more if the applicant has received benefits under the German Social Code, Book II (SGB II) since the start of the training, even though she had informed the respondent of the start of the training.
For the full decision and other details, see: www.butenob.de
4.2 – Aachen Social Court, Judgment of 07.05.2012 – S 8 AS 399/12 ER – legally binding
Guiding principles (author):
The challenged request to apply for a priority old-age pension is unlawful because the job center lacks the necessary exercise of discretion.
According to Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), the submission of an application for benefits is at the discretion of a job center.
The social security agency responsible for basic income support under Book II of the German Social Code (SGB II) must therefore always explain its reasons for the termination of benefits for a person in need, as stipulated in Section 5 Paragraph 3 Sentence 1 of the SGB II, in its initial request letter. The mere finding that an exception under the hardship clause does not apply does not relieve the SGB II agency of its duty to exercise its discretion in assessing whether to request a pension application. For example, the SGB II agency failed to address the applicant's argument that receiving the reduced old-age pension would prevent him from continuing his self-employment and lead to his permanent reliance on basic income support.
Source: socialcourtsability.de
See, in this regard, SG Neubrandenburg, decision of December 29, 2013 (file no.: S 13 AS 1751/13 ER): According to § 5 para. 3 sentence 1 SGB II, the submission of an application for benefits is at the discretion of a job center.
The agency responsible for SGB II benefits must therefore always explain its reasons for the termination of benefits for a person in need, in accordance with Section 5 Paragraph 3 Sentence 1 of the SGB II, in its initial request letter. Aspects such as the anticipated duration or amount of benefits, foreseeable income, or the existence of a chronic illness must be given particular consideration by the authorities at this stage.
4.3 – Social Court Halle (Saale), decision of 19 February 2014 – S 7 AS 486/14 ER
Guidelines (Author):
Exclusion of benefits for Bulgarian citizens who are staying in the Federal Republic of Germany solely for the purpose of seeking employment.
The Chamber has no compelling evidence to suggest that this exclusion of benefits violates European law and is therefore inapplicable.
In particular, the exclusions from benefits do not violate the general prohibition of discrimination (Article 18 TFEU) or the right to move and reside freely in the Member States (Article 21 TFEU).
It is disputed whether the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) applies to EU citizens, or whether the secondary law principle of equal treatment under Article 4 of Regulation (EC) No. 883/2004 also applies to the special non-contributory cash benefits (see, for example, Federal Social Court [BSG], B 4 AS 9/13 R, decision of December 12, 2013, on the referral to the European Court of Justice; Higher Social Court of Saxony-Anhalt [LSG Sachsen-Anhalt], decision of November 1, 2013, L 2 AS 889/13 B ER) – and therefore whether there is an entitlement in principle. This view is not shared.
Likewise, a claim for benefits under the German Social Code, Book II (SGB II), based on the European Social Security Convention (ESC) of 11 December 1953 (cf. Federal Social Court, judgment of 19 October 2010, B 14 AS 23/10 R, juris) is excluded, because Bulgaria is – as far as can be seen – not a signatory to this convention.
Source: socialcourtsability.de
See, in this regard, LSG Lower Saxony-Bremen, decision of 30.01.2014, L 13 AS 266/13 B ER – The exclusion of Bulgarian job seekers from benefits under the German Social Code, Book II (SGB II) must be observed in expedited proceedings and is not contrary to European law.
4.4 – Cologne Social Court, Judgment of 11 March 2013 – S 36 AS 303/11
Guiding principle (author):
Social Code II benefits for Iraqi citizens
Source: www.fluechtlingsinfo-berlin.de (pdf)
4.5 – Social Court Darmstadt, Judgment of 16.12.2013 – S 1 AS 467/12 – The appeal is admitted.
Regarding the question of what standard should be used to assess the necessity of supplementary learning support, in particular whether support is only considered in cases of a concrete risk of failing a grade.
Guiding principles (author):
The (risk of) promotion cannot be the only, albeit important, criterion for assessing the necessity of additional learning support.
Rather, the reference to school regulations requires answering the question of whether additional learning support is necessary and appropriate to enable the student to achieve the learning-time-related competency expectations at the given time. This necessitates an assessment of the specific learning situation and the individual student's academic development, as well as the potential impact of the learning support on their further development.
Source: socialcourtsability.de
5. Increase in the KUU in Hamburg
The new KDU guidelines for Hamburg will be available here from March 1st, 2014: www.hamburg.de
6. No right of reimbursement for the job center against the pension insurance provider in the case of a retroactively granted pension for total incapacity for work? Also a discussion of the judgments of the
Federal Social Court (BSG) of October 31, 2012, B 13 R 11/11 R and B 13 R 9/12 R, printed in this issue, pp. 108 ff. An article by Dr. Jens Blüggel, published in issue 02/2014 of the journal "Die Sozialgerichtsbarkeit" (Social Court Jurisdiction).
In two rulings dated October 31, 2012 (B 13 R 11/11 R and B 13 R 9/12 R), the Federal Social Court (BSG) had to decide on reimbursement claims by job centers against pension insurance institutions. In both cases, the benefit recipient received unemployment benefits from the Federal Employment Agency (BA) and supplementary unemployment benefit II from the job center. The pension insurance institution then retroactively granted a full disability pension. The BSG ruled that the BA's reimbursement claim takes precedence over any reimbursement claims by the job center. These two BSG rulings have prompted pension insurance institutions to cease fulfilling reimbursement claims from job centers, contrary to their previous practice. If this new practice continues, a large number of reimbursement disputes before the social courts, some involving substantial sums, are to be expected.
Source: Issue 02/2014 of the journal "Die Sozialgerichtsbarkeit" (Social Court Jurisdiction): www.diesozialgerichtsbarkeit.de
7. Case Law with Commentary – Judgment of the 4th Senate of the Federal Social Court (BSG) of March 28, 2013 – B 4 AS 42/12 R – Commentary by Dr. Markus Sichert, Bonn, published in issue 02/2014 of the journal “Die Sozialgerichtsbarkeit”.
When applying for benefits under the German Social Code, Book II (SGB II), a self-employed applicant is required, as part of their duty to cooperate, to provide information on their anticipated income from self-employment, business operations, or agriculture during the benefit period (“Annex EKS”).
Source: Issue 02/2014 of the journal "Die Sozialgerichtsbarkeit" (Social Court Jurisdiction): www.diesozialgerichtsbarkeit.de
8. SG Berlin, heard in January 2014 – S 18 AS 33122/12
Guiding principle (author):
Work-related bicycle costs are to be considered as business expenses for a self-employed person receiving supplementary benefits under the German Social Code, Book II (SGB II).
Read more and source: www.alg-ratgeber.de
9. Freedom of movement and “Hartz IV”
Is the exclusion of EU citizens from benefits under the German Social Code, Book II (SGB II), still justifiable? An article by Eva Steffen, Cologne
Source: www.einwanderer.net (pdf)
10. Guide through the bureaucratic jungle – 5th edition February 2014 – Widerspruch e. V. – Social counselling
HOW DO I SECURE MY LIVELIHOOD?
– UNEMPLOYMENT BENEFIT II – SOCIAL AID – BASIC INCOME
This guide is not a complicated commentary on the complex social laws, but provides information in simple and understandable language about rights and the most important questions surrounding social benefits – both for benefit recipients and for “professionals”.
Here: Widerspruch eV – Social Counseling – Bielefeld: widerspruch-sozialberatung.de
Sample readings: Chapter “Education Package” and Chapter “Forced Retirement”
widerspruch-sozialberatung.de – Old-age pension – Forced retirement (pdf)
widerspruch-sozialberatung.de – Education package (pdf)
11. The Myth of Social Tourism
An EU study refutes the image of Eastern Europeans supposedly undermining the Western social welfare system en masse. The debate is "polemical and superficial," says EU Commission representative Richard Kühnel, thus supporting the Caritas organization's position.
Next: The myth of social tourism – Society – derStandard.at › Panorama: derstandard.at
12. Federal Court of Justice (BGH): Child support – basic income support and ability to pay – Federal Court of Justice (BGH), Decision of 22 January 2014 – XII ZB 185/12
Taking into account legally established maintenance obligations when a person liable for maintenance applies for basic income support for job seekers does not increase their ability to pay maintenance.
Further information: HartzBote: www.hartzbote.de
13. Dr. Johann Schmidt: Legal Aspects of the Debate on “Poverty Migration” and Hartz IV for Bulgarians and Romanians.
The public debate, in the media, and among experts, concerning poverty migration prompts the following attempt at objectivity. Regarding the facts: Since January 1, 2014, Bulgarians and Romanians have been able to take up employment in Germany, for example, without the previously required work permit. This raises questions (and evidently discussions) about the nature and scope of social entitlements.
Further information:
SbZ – Legal aspects of the debate on “poverty migration” and Hartz IV for Bulgarians and Romanians – Information on Transylvania and Romania: www.siebenbuerger.de
14. Bureaucratic farce – She was supposed to go to the job center unwashed
Brigitte W. (46) refused to go to the job center unwashed. Now her unemployment benefit II is being reduced. Read more here: www.bz-berlin.de
15. In overcrowded shelters – the state must pay for private accommodation for asylum seekers
In overcrowded asylum seeker accommodations, the state must provide alternative housing – if necessary, even on the private housing market. This was the ruling of the European Court of Justice on Thursday (Case C-79/13). If asylum seekers receive money from social services for accommodation in such cases, this amount must be sufficient to enable them to rent a private apartment. The judges did not specify a particular sum. However, they stipulated that recipients cannot choose their accommodation according to their personal preferences.
Source: www.focus.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
