1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Bavarian State Social Court, Judgment of 28 June 2012 – L 7 AS 985/11
A measure (here a one-euro job) must be described with sufficient precision so that its refusal results in a sanction according to Section 31 Paragraph 1 of the German Social Code, Book II (SGB II).
Guiding Principles (Juris):
The measure must be described in sufficient detail to allow the affected person to form an understanding of it and to assess its reasonableness, necessity, and suitability. Details not required for this fundamental assessment, such as the distribution of working hours across the individual days of the week or which of several possible tasks is to be performed, need not be specified.
Source: socialcourtsability.de
1.2 – Bavarian State Social Court, decision of 26 March 2014 – L 7 AS 220/14 B ER
A review procedure can only lead to the reinstatement of the expedited procedure under exceptional circumstances. In such cases, an application for a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) is admissible, with the aim of provisionally securing the right to the revocation of the adverse administrative act; however, a strict standard applies in this regard.
Guiding Principles (Juris):
1. An application for preliminary legal protection is inadmissible if a binding decision has been rendered in the main proceedings. In such a case, there is no legal position that could be provisionally secured until a binding decision is reached in the main proceedings.
2. If a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X) has been initiated for a legally binding decision, an application for preliminary legal protection regarding subsistence benefits may become admissible again if the review application has been submitted to the authority, the urgency of the review has been demonstrated, and the authority has been granted a sufficient processing period.
3. The review application pursues a claim for the revocation of an adverse, unlawful decision. If the application for interim relief is again admissible, a regulatory order must be issued, applying strict standards, to examine whether there is a claim for the revocation of the legally binding original decision and whether there is an urgent ground for such an order. There must be serious doubts about the legality of the reviewed decision and a particular urgency.
4. These standards also apply to preliminary legal protection against an administrative act of intervention (here, a set-off notice pursuant to Section 42a Paragraph 2 of the German Social Code, Book II).
Source: socialcourtsability.de
1.3 – North Rhine-Westphalia State Social Court, decision of 27 March 2014 – L 7 AS 326/14 B ER – legally binding.
Greek citizen is entitled to ALG II (unemployment benefit II) within the framework of the balancing of interests – family reunification.
Guiding Principles (Author):
The applicant's right of residence is based on family grounds, arising from the cohabitation of the partners with a shared child. This group of persons constitutes a family within the meaning of Article 6 of the Basic Law and Sections 27 Paragraph 1, 28 Paragraph 1, 29 and 32 of the Residence Act and can also invoke the protection afforded by Article 8 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (HRC) (as ultimately concluded by the Federal Social Court, judgment of January 30, 2013 – B 4 AS 54/12 R, which, in connection with Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II, already affirmed prenatal protection).
Source: socialcourtsability.de
1.4 – North Rhine-Westphalia State Social Court, decision of 26 March 2014 – L 7 AS 425/14 B ER – and – L 7 AS 426/14 B – legally
binding: Loan-based assumption of electricity debts by the Job Center in accordance with the balancing of interests
Guiding Principles (Author):
The assumption of debts should not be rejected solely in cases of economically unreasonable (reprehensible) behavior on the part of the benefit recipient. Otherwise, the provision of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) would be rendered meaningless, because debts in the sense described therein are generally attributable to misconduct on the part of the benefit recipient (Federal Social Court judgment of June 17, 2010 – B 14 AS 58/09 R – para. 31). In the present case, there is insufficient evidence of intentional benefit fraud that might render the assumption of the debts abusive.
The social security provider failed to offer any alternatives or provide the applicant with the necessary advice and support required by the established case law of the Senate (see, in this regard, the decision of the Higher Social Court of North Rhine-Westphalia of August 14, 2013 – L 7 AS 1143/13 B ER). The mere assertion that the repayment of the electricity debts must be arranged by the applicant herself is insufficient.
Source: socialcourtsability.de
Note:
Regarding the assumption of electricity debts in the context of a balancing of interests, see LSG NRW, decision of 19.09.2013 – L 7 AS 1591/13 B ER and – L 7 AS 1592/13 B
1.5 – North Rhine-Westphalia State Social Court, decision of 24.03.2014 – L 19 AS 250/14 B ER – legally
binding. Legality of an administrative act replacing an integration agreement.
Guiding principles (author):
An administrative act replacing the integration agreement is considered if the basic income support provider has previously made an unsuccessful attempt to conclude an agreement with the job seeker and also if, in individual cases, there are special reasons that make concluding an agreement seem inappropriate.
If the applicant responds to this with deletions and comments such as "illegal" and "unacceptable", without this being factually correct or even comprehensible from his point of view, the job center was justified in considering the attempt to reach an amicable agreement with him as having failed.
In such a case, it is unreasonable to expect the administrative body to undertake further attempts that are doomed to failure from the outset (Judgment of the Senate of 17.02.2014 – L 19 AS 749/13; furthermore, LSG North Rhine-Westphalia decision of 09.12.2013 – L 2 AS 1956/13 B ER; substitute administrative act already in case of imminent loss of time).
The integration administrative act is unlawful insofar as the job center makes determinations for the period prior to its notification (§ 37 para. 2 sentence 1 SGB X) (see also the Senate's decision of March 4, 2014 – L 19 AS 2344/13 B). Nevertheless, the appeal is not even partially justified because it is in no way foreseeable that the job center intends to impose sanctions with regard to breaches of obligations that fall within the period prior to notification. Within the framework of the balancing of interests required in the proceedings pursuant to § 86b para. 1 SGG, it must be assumed that the respondent, when reviewing a sanction decision, takes into account that the effects of an administrative act can only take effect upon its notification (§ 39 para. 1 sentence 1 SGB X). Otherwise, the applicant can obtain effective legal protection by challenging a potential sanction decision.
Source: socialcourtsability.de
1.6 – Berlin-Brandenburg State Social Court, Judgment of 24 February 2014 – L 34 AS 1130/11
Basic income support for job seekers – consideration of income – deduction of reasonable contributions for a capital life insurance policy or a private pension insurance policy
Guiding principle (author):
No deduction of “inappropriate” contributions pursuant to Section 11 Paragraph 2 No. 3 Sentence 1 of the German Social Code, Book II (SGB II) (old version) for a capital life insurance policy or a private pension insurance policy from the income of a self-employed person.
The appropriateness of contributions to private life insurance fails because it is generally seen not only as protection for old age or in case of death, but also as a means of capital accumulation, i.e., wealth accumulation.
Even though retirement provision is based on three pillars (statutory, private, occupational), it does not follow that any private investment labelled as "retirement provision" must be taken into account within the framework of basic income support.
No deduction of the amounts pursuant to Section 11 Paragraph 2 No. 3b SGB II a. F., because the conditions for an exemption from compulsory insurance pursuant to Section 6 Paragraph 1b SGB VI were not met here, as the contracts in question did not provide for disability insurance.
Source: socialcourtsability.de
Note:
See LSG Bayern, decision of 11.5.2010 – L 7 AS 232/10 B ER and Klerks in info also 2/2014, 57 – Expenses for a capital life insurance policy can be deducted from income pursuant to § 11 para. 2 sentence 1 no. 3b SGB II if the applicant is exempt from statutory pension insurance.
1.7 – Berlin-Brandenburg State Social Court, Judgment of 19 February 2014 – L 10 AS 881/10
Requirements for a cost reduction request regarding heating costs
Guiding Principles (Author):
The appropriateness of heating costs must be assessed separately from the appropriateness of the gross rent (most recently Federal Social Court, judgment of June 12, 2013 – B 14 AS 60/12 R). Therefore, a separate request to reduce heating costs is required to trigger the legal consequence that only the appropriate heating costs, and not the actual costs incurred, constitute the basis for calculation (regarding the requirement of a separate request to reduce heating costs, see Federal Social Court, judgment of September 19, 2008 – B 14 AS 54/07 R, juris para. 22). In accordance with the requirements for a cost reduction request regarding accommodation, the basic income support provider must specify the heating costs it considers reasonable (corresponding to the wording chosen for accommodation costs, "the specification of the reasonable rent" – Federal Social Court, judgment of December 17, 2009 – B 4 AS 19/9 R). Such a cost reduction request is lacking here.
Source: socialcourtsability.de
1.8 – Berlin-Brandenburg State Social Court, decision of 10 April 2014 – L 25 AS 811/14 B ER – legally
basic income support for job seekers – complaint of inaction – admissibility (denied) – following the Federal Social Court (BSG), decisions of 21 May 2007 – B 1 KR 4/07 R – and of 6 February 2008 – B 6 KA 61/07 B –
Guiding Principles (Author)
In addition, it should be noted that with the Act on Legal Protection in Cases of Excessively Long Court Proceedings and Criminal Investigations of November 24, 2011 (Federal Law Gazette I, page 2302), which entered into force on December 3, 2011, the legislator amended the Courts Constitution Act (GVG) and added the Seventeenth Title "Legal Protection in Cases of Excessively Long Court Proceedings and Criminal Investigations" with Sections 198 to 201 GVG to this Act (Article 1 of the Act).
This adequately addresses the requirement of effective legal protection against excessively long proceedings, thus eliminating the need for a complaint of inaction.
Source: socialcourtsability.de
1.9 – Saxon State Social Court, decision of 05.03.2014 – L 3 AS 1883/13 B ER
Recipients of benefits under the German Social Code, Book II (SGB II), cannot demand a verbatim transcript
Guiding principle (author):
Unemployed individuals cannot demand that every single word exchanged during conversations with the job center be recorded.
There is no general, legally enforceable right to demand that a job center engage in job placement activities.
Source: socialcourtsability.de
1.10 – Rhineland-Palatinate State Social Court, Judgment of 19 March 2014 – L 4 AS 615/12
A coherent concept for determining a reference rent
Guiding principles (Juris):
A qualified rent index can provide the basis for a coherent concept, whereby the size range of the apartment must not be defined in pairs and the entire comparison area must be represented.
The prior determination of a rent ceiling and its subsequent legitimization by using individual fields of the rent index or specific rent index data does not meet the requirements of a coherent concept.
A coherent concept requires the mathematical derivation of the upper rent limit from rent index data based on previously described, comprehensible criteria.
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Berlin, decision of April 4, 2014 (file no.: S 167 AS 6266/14.ER):
Guiding principles by Dr. Manfred Hammel:
Whether a job center, as an SGB II provider, submits an application to another social security provider in accordance with § 5 para. 3 sentence 1 SGB II is fundamentally at its discretion.
The request to submit an application, based on Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), and directed at eligible persons, requires a discretionary decision, which must be justified in accordance with Section 35 Paragraph 1 Sentence 3 of the German Social Code, Book X (SGB X) in conjunction with Section 39 Paragraph 1 of the German Social Code, Book I (SGB I).
The phrase "after weighing all aspects" does not meet the requirements for exercising discretion if the SGB II agency specifically identifies the decisive aspects in either the initial request letter or the appeal decision. A Job Center must perform calculations regarding an applicant's reduced pension, taking into account the duration of the benefit payments and the (ongoing) reliance on supplementary social assistance due to reduced earning capacity.
This applies particularly if the SGB II provider has concluded an integration agreement (§ 15 para. 1 sentence 1 SGB II) with the applicant in question immediately before such a request.
Note 1:
See also Attorney Kay Füßlein, Scharnweberstraße 20, 10247 Berlin: Once again, the Berlin Social Court prevented an early retirement pension under Sections 12a and 5 of the German Social Code, Book II (SGB II) (decision of the Berlin Social Court of April 4, 2014 – S 167 AS 6266/14 ER). The court states: www.ra-fuesslein.de
Note 2:
Cf. SG Dresden, Decision of 21.02.2014 – S 28 AS 567/14 ER (Press Release of 19.03.2014): The Jobcenter's request to apply for an early retirement pension without knowledge of the expected pension amount is unlawful.
2.2 – Social Court Frankfurt/Oder, decision of 17 April 2014 – S 20 AS 453/14 ER
The housing cost regulations in the Oder-Spree district are most likely unlawful – grounds for the order
Guiding principles (author):
A 12% reduction in the standard benefit rate is sufficient to establish an urgent need.
The concept used in the Oder-Spree district (in this case: Erkner) for the costs of accommodation is most likely unlawful.
There are doubts about the comparison area and the rental values used are too old.
Source: Attorney Kay Füßlein, here is the decision with annotations by Attorney K. Füßlein: www.ra-fuesslein.de
2.3 – SG Itzehoe, Judgment of 22.07.2013 – S 29 AS 607/11
Death quarter as income
Guiding Principles (Nomos)
: 1. Payments to an estate are generally not available to a member of the estate as readily available funds. (Official guiding principle)
2. A widow's death benefit, erroneously paid into the account of an estate, is not to be considered available funds for the calculation of her SGB II (Social Code, Book II) entitlement at the time of payment into the estate's account. (Official Headnote)
2.4 – Social Court Detmold, Judgment of 28 March 2014 – S 28 AS 1937/12 – and – S 28 AS 1935/12 – The appeal is admitted
Accommodation and heating – reasonable heating costs – electric heating – differentiation of heating electricity from household electricity in the absence of technical devices for consumption recording – no deduction of household energy from the undifferentiated total allowance
Guiding Principles (Author):
If an apartment is heated with electricity, no distinction should be made between heating electricity and household electricity. If this distinction is not possible, e.g., due to a lack of separate meters, it is inadmissible to deduct the amount allocated for household energy in the standard benefit rate.
If an unspecified amount for electricity not used for heating purposes is included in a payment obligation, it is considered part of the needs for accommodation and heating.
Deducting the amount allocated for household energy in the standard benefit is precluded by the fact that the German Social Code, Book II (SGB II), does not provide for an individual needs assessment or a different determination of the standard benefit amount. This applies both to the benefit and to the detriment of the recipient of assistance (Federal Social Court, judgment of November 24, 2011 – B 14 AS 151/10 R, concerning so-called inclusive rent).
Source: socialcourtsability.de
Note:
BayLSG held a different view, decision of 07.10.2013 – L 7 AS 644/13 B ER
2.5 – SG Leipzig, Judgment of 20.02.2014 – S 25 AS 2286/12
Regarding the question of whether bringing along the text of the law with markings and the question of the legal basis for demanding a CV constitutes provocative and deterrent behavior.
Guiding Principles (Author):
A recipient of benefits under Book II of the German Social Code (SGB II) who presents themselves to a provider of measures pursuant to Section 16d of Book II of the German Social Code (SGB II) must be allowed to bring their documents, which also contain legal texts. This fact, viewed objectively, is not provocative in itself.
(Source: elo-leipzig.de pdf)
Note 1: Sat:
Judgment S 25 AS 2286/12 of 20 February 2014 – Must a CV be submitted to the training provider?: elo-leipzig.de
Note 2:
Social Court Leipzig, decision of May 29, 2012, - S 25 AS 1470/12 ER – Hartz IV recipients are not required to submit a curriculum vitae to the training provider. Conversely, a refusal to grant consent cannot lead to the benefit recipient being sanctioned for this (similarly, Social Court Berlin, decision of February 15, 2012 – S 107 AS 1034/12 ER).
3. Determination and crediting of income of self-employed persons
An article by Uwe Klerks, published in issue 02/2014 of info also: www.info-also.nomos.de (pdf)
4. Now also in the press: Self-employed people face stricter Hartz IV rules
Here: www.welt.de
See also “Massive changes to SGB II planned”: tacheles-sozialhilfe.de
On page 3: www.harald-thome.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
