1. Decisions of the Federal Social Court of 04.06.2014 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 04.06.2014 – B 14 AS 53/13
The Berlin Housing Cost Ordinance (WAV) is entirely unlawful and invalid for the period from May 1, 2012, to July 31, 2013. The use of values from the nationwide heating cost index is insufficient to establish an overall limit of reasonableness, as it is only a limit value (Federal Social Court [BSG] judgment of May 12, 2013 – B 14 AS 60/12 R).
Source: juris.bundessozialgericht.de
Note 1:
A different view is currently held by the Berlin Social Court (SG Berlin), judgment of April 28, 2014 – S 82 AS 28836/12 – The Housing Expenses Ordinance (WAV) in the version of April 3, 2012 is valid.
Note 2:
Court (BSG) overturns heating allowances for Hartz IV recipients: www.morgenpost.de
1.2 – BSG, judgments of 04.06.2014 – B 14 AS 41/13 R and – B 14 AS 42/13 R
Pension payments are to be treated as equivalent to loan repayments for financing a home.
Guiding principles (author):
The monthly pension of 440 euros paid by the benefit recipients to the former owner of the house they now live in and own is not to be recognized as an expense for accommodation.
In the present form of the transfer agreement, the pension payments in their entirety are, according to the Federal Court of Justice's jurisprudence, to be considered under civil law as the purchase price for the acquisition of the property and are therefore to be treated no differently under the German Social Code, Book II (SGB II), than the monthly mortgage payments following a property purchase. According to the Federal Social Court's jurisprudence, which is upheld, the assumption of such payments is only appropriate in exceptional cases concerning the preservation of homeownership whose financing is already largely complete at the time the recipient begins receiving unemployment benefit II (see Federal Social Court judgment of February 16, 2012 – B 4 AS 14/11 R). Given the age of the former owner, this was not the case here.
Source: juris.bundessozialgericht.de
1.3 – BSG, Judgment of 04.06.2014 – B 14 AS 38/13 R
Guiding principle (author)
: Employers must provide job centers with information free of charge.
Constitutional law does not preclude this. The exclusion of reimbursement for employer inquiries is compatible with both Article 12 Paragraph 1 of the Basic Law and – in comparison to those obligated to provide information who have a legal right to do so (Section 60 Paragraphs 2 and 4 of the German Social Code, Book II) – with Article 3 Paragraph 1 of the Basic Law.
Source: juris.bundessozialgericht.de
1.4 – Federal Social Court (BSG), Judgment of June 4, 2014 – B 14 AS 30/13 R
Principle (Author):
There is no de minimis threshold of 10% of the standard benefit rate for child visitation costs, as there is no legal basis for this in the German Social Code, Book II (SGB II).
Source: juris.bundessozialgericht.de
2. Decisions of the Federal Social Court of 05.06.2014 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 05.06.2014 – B 4 AS 49/13 R A
(partially) unused allowance cannot affect other types of income.
Guiding principles (author):
The basic allowance according to § 11 para. 2 sentence 2 SGB II aF is only deductible from income from employment, but not from other types of income.
Deductions from income are only permitted to the extent that the deductible expense has not already been deducted in full or in part. The allowance under this provision is a lump sum, so it cannot be assumed that a specific amount included in it remains available for other deductions due to incomplete use of the allowance.
Source: juris.bundessozialgericht.de
2.2 – BSG, Judgment of 05.06.2014 – B 4 AS 31/13 R
A recipient of supplementary benefits under Book II of the German Social Code (SGB II) can also deduct necessary car lease payments from their income from self-employment.
A media report from the Federal Social Court (BSG) states:
For so-called "supplementary benefit recipients" who earn business income from self-employment in addition to receiving SGB II benefits, business expenses can be deducted from their income—in addition to the flat-rate allowance of €100 (which also applies to employees) for contributions to public or private insurance, retirement savings, and necessary expenses related to generating income. This also applies if the income from self-employment does not exceed €400. Section 3, Paragraph 1, Sentence 1 of the Regulation on Unemployment Benefit II (Alg II-V) ("with the exception of the amounts to be deducted according to Section 11, Paragraph 2 of Book II of the German Social Code (SGB II)") stipulates that business expenses cannot be deducted twice.
Source: juris.bundessozialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – State Social Court Berlin-Brandenburg, decision of 10 March 2014 – L 29 AS 252/14 B ER – legally binding
No obligation to refer a case to the ECJ in proceedings for interim legal protection – Italian citizen has no entitlement to ALG II (unemployment benefit II).
Guiding principles (author):
The adjudicating Senate has consistently ruled that it cannot find this regulation to be incompatible with European law. Following the decision of the 20th Senate of the Berlin-Brandenburg State Social Court (LSG) in its ruling of February 29, 2012 (L 20 AS 2347/11 B ER), the Senate has repeatedly pointed out (among others in the rulings of March 5, 2012, L 29 AS 414/12 B ER, of June 7, 2012, L 29 AS 920/12 B ER, of June 12, 2012, L 29 AS 914/12 B ER, of June 22, 2012, L 29 AS 1252/12 B ER and of November 9, 2012, L 29 AS 1782/12 B ER) that only a conviction that this regulation is incompatible with European law could exceptionally justify not applying this formal law. The non-application of a law that has entered into force (here, Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II) constitutes a significant infringement on the legislature's freedom to shape policy (cf. regarding the suspension of the enforcement of a law, Federal Constitutional Court, decision of February 17, 2009, 1 BvR 2492/08) and carries the risk of violating the principle of the separation of powers (Article 20 Paragraph 3 of the Basic Law – GG). Not least for this reason, according to Article 100 GG, a law may only be disapplied and the Constitutional Court referred to it if the court called upon to decide the matter is convinced of the law's unconstitutionality.
Source: sozialgerichtsbarkeit.de
Note:
The Higher Social Court of North Rhine-Westphalia (LSG NRW) held a different view in its decisions of January 31, 2013 – L 2 AS 2457/12 B ER and – L 2 AS 2458/12 B ER –.
3.2 – Berlin-Brandenburg State Social Court, decision of 17 March 2014 – L 20 AS 502/14 B ER
Basic income support for job seekers for EU foreigners – no entitlement to provisional benefit approval in view of pending proceedings before the ECJ
(Author's guiding principle)
Romanian nationals are excluded from SGB II benefits.
Source: sozialgerichtsbarkeit.de
Note:
Same opinion for a British citizen LSG BB, Decision of 20.03.2014 – L 29 AS 514/14 B ER – The Senate, even taking into account the decision of the Federal Social Court (BSG) of 12 December 2013 (B 4 AS 9/13 R – referral to the Court of Justice of the European Communities [ECJ]), is not convinced of the incompatibility of the statutory provision of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II with European law and adheres to its previous case law.
3.3 – Berlin-Brandenburg State Social Court, Judgment of 04.03.2014 – L 29 AS 814/11
Regarding the assertion of a claim for compensation under Section 34 of the German Social Code, Book II (SGB II) by the Job Center due to retraining
Guiding principles (author):
The applicant cannot be accused of socially unacceptable behavior within the meaning of Section 34 SGB II, because her decision to give up her previous work as a nurse and to begin retraining as a speech therapist is understandable.
The plaintiff's health condition (cardiac arrhythmia) had to be taken into account, considering the professional demands of her job as a nurse (home care service), as well as the fact that, as a single mother of a then 17-year-old daughter, she had a greater need for her child's care and therefore felt unable to perform the required substantial overtime and weekend work.
Source: sozialgerichtsbarkeit.de
3.4 – Lower Saxony-Bremen State Social Court, Judgment of 19 March 2014 – L 13 AS 325/11
Matters under the German Social Code, Book II (SGB II) – Revocation of provisionally granted benefits – Interpretation of a revocation and reimbursement notice as a final determination following a provisional determination – No prejudicial effect of the reasons for the reservation of provisionality – No prohibition on offsetting
1. The interpretation of a cancellation and reimbursement notice may, in individual cases, reveal that it is a final determination following a provisional determination of benefits, including the recovery of the overpaid amount, even if the notice does not expressly mention this.
2. A preliminary decision does not have a prejudicial effect such that the final decision may only deviate from the preliminary determination for the expressly stated reasons for its provisional nature.
3. In the case of a final determination of benefits following a provisional determination, the prohibition of offsetting (offsetting overpayments in individual months against insufficient benefits in other months) does not apply, since the provisional arrangement, as a temporary arrangement, cannot create legal certainty in this respect.
Source: www.rechtsprachung.niedersachsen.de
3.5 – Lower Saxony-Bremen State Social Court, Judgment of 03.04.2014 – L 7 AS 827/12
Guiding principles (author):
In the case of undisclosed assets (savings), there is no legal basis for limiting the suspension of benefits and reimbursement to the maximum assets that would have been fictitiously used up if the assets had been lawfully disclosed (contra LSG Sachsen Anhalt, judgment of July 25, 2012 – L 5 AS 56/10).
The consideration of the actual amount of assets available at each application date also corresponds to the consistently applicable legal situation in the German Social Code, Book II (SGB II), because according to the case law of the Federal Social Court (see: judgment of July 30, 2008 – B 14 AS 14/08 B), the consideration of assets within the meaning of Section 12 of the German Social Code, Book II (SGB II) essentially follows the previous law on unemployment assistance, according to the will of the legislator.
Neither the German Social Code, Book II (SGB II) nor the regulation pursuant to Section 13 SGB II contains a provision that precludes the repeated consideration of assets. On the contrary, the principle of subsidiarity enshrined in Sections 3(1) and (3) and 9(1) SGB II – also according to the unanimous opinion in the commentary on Section 12 SGB II (see, for example, Mecke in: Eicher, SGB II, 3rd ed., Section 12, marginal note 49) – supports the conclusion that assets actually existing must be considered multiple times, even with the effect of excluding benefits. The construct of reimbursement obligations that reduce assets cannot alter this. Regardless of the question of when reimbursement claims arise due to unlawful benefit awards, such obligations, as liabilities, do not reduce either the value of the assets or their realizability.
Source: www.rechtsprechung.niedersachsen.de
Note:
The same view is held by the Higher Social Court of Baden-Württemberg (LSG Baden-Württemberg), judgment of July 22, 2011 – L 12 AS 4994/10, and the Higher Social Court of Brandenburg (LSG BB), judgment of March 12, 2010 – L 5 AS 2340/08; contra: For a limitation of the amount to be recovered to the (fictitious) maximum assets that would be consumed if the information provided in a timely and complete manner were available, as a necessary restoration of the "materially correct legal situation," see the Higher Social Court of Saxony-Anhalt (LSG Sachsen-Anhalt), judgment of July 25, 2012 – L 5 AS 56/10 – and the Social Court of Karlsruhe (Sozialgericht Karlsruhe), judgment of June 30, 2011 – S 13 AS 1217/09, referring to the Federal Administrative Court (BVerwG), decision of July 18, 1986 – 5 B 10/85; Geiger, in: Münder, SGB II, 5th ed. 2013, § 12 para. 87; Berlit, in: info also 2011, 223, 225 ff – and currently Social Court Landshut, judgment of 05.02.2014 – S 10 AS 390/12 -.
3.6 – Schleswig-Holstein State Social Court, Judgment of 17 January 2014 – L 3 AS 114/11 – Appeal pending before the Federal Social Court under file number B 14 AS 23/14
Temporary community of need – Crediting of child benefit and maintenance advance – Additional needs for single parents in the case of shared custody – The care and upbringing of the daughter was suspended with the mother at 60%.
Guiding Principles (Author):
There is no entitlement to the additional needs allowance for single parents pursuant to Section 21 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II), if the parent claiming it only assumes responsibility for the child's care for approximately 40% of the time each month.
Source: sozialgerichtsbarkeit.de
Note:
Social Court Kassel, Judgment of August 28, 2013 – S 6 AS 711/12 – The general principle of equality under Article 3 Paragraph 1 of the German Basic Law (Constitution) does not provide a basis for extending the additional needs allowance for single parents to other situations within a so-called shared custody arrangement with shorter intervals.
4. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
4.1 – Social Court Berlin, Judgment of 28 April 2014 – S 82 AS 36391/10
Guiding Principles (Author):
The consideration of income or assets (here, an inheritance) presupposes that these are actually still available to the person in need as readily accessible funds. Actual circumstances take precedence over a normative calculation. If the applicants have spent their income and assets without considering a future need for assistance, they are in need. In this respect, claims for reimbursement must be asserted in accordance with Section 34 of the German Social Code, Book II (SGB II).
A claim for reimbursement becomes retrospectively unlawful if, upon reaching the age of majority, the debtor's assets fall short of the amount owed (liability of minors – cf. Federal Social Court judgment of July 7, 2011, B 14 AS 153/10 R).
Source: sozialgerichtsbarkeit.de
4.2 – Berlin Social Court, Judgment of April 28, 2014 – S 82 AS 28836/12 – The appeal is granted.
The WAV (Working Group on the Implementation of the Working Group) is applicable law as a statutory instrument (a different view – cf. judgments of April 25, 2013 – L 36 AS 2095/12 NK – and September 4, 2013 – L 36 AS 1414/12 NK and L 36 AS 1987/13 NK – are appealed on points of law and are not yet legally binding).
Source: sozialgerichtsbarkeit.de
Note:
Federal Social Court (BSG) holds a different view, Judgment of June 4, 2014 – B 14 AS 53/13
4.3 – Gelsenkirchen Social Court, Judgment of August 12, 2013 – S 36 AS 2517/12 – The appeal is granted.
Regarding the scope and effects of the seamless transition provision of Section 44a of the German Social Code, Book II (SGB II), particularly in cases where there is no dispute between two benefit providers regarding the provision of benefits.
Guiding Principles (Author):
Section 44a Paragraph 1 Sentence 7 of the German Social Code, Book II (SGB II) presumes the employability of the job seeker and obligates the provider of benefits under SGB II to provide benefits not only after an objection has been filed. This also applies not only in the case of an existing dispute between two benefit providers, but also in the preliminary stages.
Source: sozialgerichtsbarkeit.de
4.4 – SG Cologne, Decision of 22.05.2014 – S 20 AS 4534/13
Principle (Author):
The law does not provide for a duty or obligation to submit a status inquiry to the authority before filing an action for failure to act, certainly not as a condition of admissibility.
The decision is available to the author.
Note:
See also LSG Hessen, decision of 15.02.2008 – L 7 B 184/07 AS –
4.5 – Social Court Dresden, Judgment of 07.04.2014 – S 20 AS 13/14 – Appeal against the refusal of leave to appeal pending before the Saxon State Social Court under file number L 3 AS 720/14 NZB
It was left open whether Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), as a legal basis for claims, meets the constitutional requirements described by the Federal Constitutional Court in its judgment of February 9, 2010 (1 BvL 1/09 et al. = SozR 4-4200 § 20 No. 12) (contrary to the judgments of the Chamber of January 25, 2013 – S 20 AS 4915/11 – and of June 17, 2013 – S 20 AS 3375/10).
Guiding Principles (Author):
If an employable benefit recipient is subject to an obligation to reduce costs, the housing benefits under the German Social Code, Book II (SGB II) – in cases where local information gathering is deemed to be impossible – are to be limited, even under the provisions of Section 12 of the Housing Benefit Act (new version), to the values in the housing benefit table plus a surcharge of 10 percent.
Source: sozialgerichtsbarkeit.de
4.6 – Social Court Dresden, Judgment of 28 April 2014 – S 48 AS 6813/12
Regarding the applicant's liability for damages due to socially unacceptable behavior – termination of employment due to imprisonment – the mere notification or determination of the liability for damages is not sufficient.
Principle (Author):
A notice of liability for reimbursement under Section 34 of the German Social Code, Book II (SGB II) is sufficiently specific if the recipient of the administrative act can ascertain the amount of the liability. Therefore, the notice must specify the exact amount owed, as it is intended to serve as the basis for enforcement once it becomes legally binding, should the claim not be settled voluntarily. Mere notification or determination of the liability for reimbursement is therefore insufficient.
The contested decision does not specify a concrete sum that the applicant is obligated to repay. Therefore, it lacks a sufficiently specific operative clause. Enforcement based on the decision is not possible.
Violations of the principle of legal certainty are categorized into those that are so serious and obvious as to render the decision void, and those that merely result in illegality and can therefore be remedied by subsequent amendments, either in the appeal decision or even during court proceedings. In this case, voidness is conceivable, as the challenged decision clearly lacks a operative clause. However, this point can remain open, since the violation was not remedied in any case, neither during the appeal nor the legal proceedings. The defendant did not specify a concrete liability amount in any further administrative act. Therefore, the decision remains illegal.
Source: sozialgerichtsbarkeit.de
4.7 – Social Court Kassel, decision of 09.05.2014 – S 6 AS 70/14 ER
Guiding principles (Juris):
According to Section 3 Paragraph 1 of the Freedom of Movement Act/EU, family members of the Union citizens mentioned in Section 2 Paragraph 2 Nos. 1 – 5 of the Freedom of Movement Act have the right to freedom of movement if they accompany the Union citizen or join him/her.
If a separation occurs after joint entry into Germany (here due to domestic violence), but not a divorce, any potential entitlement to benefits under Book II of the German Social Code (SGB II) of the previously unemployed wife does not depend on whether she forms a household with her husband.
The imputation of fictitious income under the German Social Code, Book II (SGB II), contradicts the principle of needs-based coverage. Referencing outstanding maintenance claims is inadmissible.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB X II)
5.1 – Hessian State Social Court, decision of 15 May 2014 – L 4 SO 19/14 B ER
Guiding principle (author):
The "Conclusive Concept for Rent Ceilings (MOG) in the Wetterau district" (as of January 1, 2014), applied by the Job Center, complies with the requirements of the Federal Social Court's jurisprudence.
Source: sozialgerichtsbarkeit.de
6. Decisions of the social courts on social assistance (SGB X II)
6.1 – Wiesbaden Social Court, Judgment of 30 April 2014 – S 30 SO 172/11
Legal Principles (Juris):
The costs for activating a home emergency call system necessitated by a disability must be fully reimbursed by the responsible social welfare agency, provided these costs are not covered by the long-term care insurance. Mere reimbursement of a calculated "basic fee" is not permissible.
Source: https://sozialgerichtsbarkeit.de
7. Decisions of the social courts on asylum law
7.1 – Social Court Berlin, Judgment of 12.05.2014 – S 90 AY 136/13 – The appeal is admitted.
Section 1a No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) is not to be interpreted in a manner consistent with the constitution in such a way that a reduction of benefits is excluded even in cases of disapproved behavior by benefit recipients.
Guiding Principles (Author):
If the conditions of Section 1a No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are met, a reduction of benefits under Section 3 of the AsylbLG is possible and not unconstitutional (Higher Social Court of Berlin-Brandenburg, decision of July 23, 2013, file no. L 23 AY 10/13 B ER).
Source: sozialgerichtsbarkeit.de.
Note:
Higher Social Court of Berlin-Brandenburg (LSG BB) held a different view in its decisions of December 10, 2013, file no. L 15 AY 23/13 B and February 6, 2013, file no. L 15 AY 2/13 B.
8. Cologne Social Court upholds sanctions as constitutional.
Just one day before the Bundestag was scheduled to debate and vote on a motion by the Left Party (DIE LINKE) to abolish sanctions for recipients of unemployment benefit II (ALG II) and social assistance, a hearing was held yesterday, Thursday, concerning, among other things, the unconstitutionality of sanctions.
Read more here: www.leo-koeln.org
9. Wolff, Joachim (2014): Sanctions under the German Social Code, Book II (SGB II) and their effects. (IAB Statement, 02/2014), Nuremberg, 17 pp.
Sanctions under the German Social Code, Book II (SGB II) and their effects
Brief description
: "In this statement, the IAB comments on a motion by the Pirate Party parliamentary group in the North Rhine-Westphalia state parliament regarding the suspension of sanctions for recipients of unemployment benefit II (ALG II) (document 16/4162). The IAB's statement describes the potential effects of sanctions for ALG II recipients and presents the key findings of related impact research."
Read more: www.iab.de
10. The Dresden Social Court overturns the repeated sanctions imposed on a mentally disabled recipient of Hartz IV benefits – Dresden Social Court, judgment of May 16, 2014 – S 12 AS 3729/13 et al.
Case-specific conflict management by the job center for a disabled benefit recipient.
The Dresden Social Court ruled that the repeated sanctions imposed on a mentally disabled recipient of Hartz IV benefits are disproportionate when special support services are required.
Press release of the Dresden Social Court dated June 5, 2014: www.justiz.sachsen.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
