1. Decisions of the Federal Social Court of 02.04.2014 on basic income support for job seekers (SGB II)
1.1 – Federal Social Court (BSG), Judgment of April 2, 2014 – B 4 AS 27/13 R
Social Law Administrative Procedure – Lawyer's Fees – Reimbursable Costs in Isolated Preliminary Proceedings – Client – Multiple Parties – Representation – Same Matter – Circumstances of the Individual Case – Single Mandate – Intrinsic Connection – Individual Claims – Power of Attorney – Community of Need – Increased Fee – Business Fee – Determination – Inequity – Threshold Fee
Guiding principles (author):
When representing several people in a household receiving social assistance, lawyers generally cannot charge the full fee for each person, because the dispute usually concerns "a single set of facts".
The two senates of the Federal Social Court (BSG) responsible for basic income support for job seekers have proceeded on the assumption that individual claims under Book II of the German Social Code (SGB II) can, in principle, constitute the same matter within the meaning of Section 15 Paragraph 2 Sentence 1 of the former German Lawyers' Fees Act (RVG aF) or Section 15 Paragraph 2 RVG, whereby the constellation of a household unit triggers an increased fee pursuant to No. 1008 of the Schedule of Fees for Lawyers (VV RVG) (see BSG judgment of December 21, 2009 – B 14 AS 83/08 R; BSG judgment of September 27, 2011 – B 4 AS 155/10 R). Therefore, in principle, several mandates from different clients can also constitute "the same matter" under SGB II. The same applies, taking into account the relevant circumstances of the individual case, even if the matter concerns different objects and partially separate review tasks. This is the case here.
Source: juris.bundessozialgericht.de
Note:
Cf. Social Court Cottbus, Judgment of 17.03.2014 – S 32 AS 436/13 – Representation in legal disputes in the field of SGB II – “the same matter” within the meaning of the fee law – separate objection proceedings for assessment and reimbursement notices against several members of a household receiving benefits – single set of circumstances.
2. Decisions of the Federal Social Court of 13 February 2014 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 13 February 2014 – B 4 AS 22/13
Social law administrative procedure – application for a review of all decisions of recent years for their legality without stating the grounds for illegality – no obligation for the provider of basic income support for job seekers to conduct a substantive review
Guiding principle (author):
An application pursuant to Section 44 of the German Social Code, Book X (SGB X) must always relate to a specific individual case, i.e., a specific question of a factual or legal nature or a specific administrative decision, e.g., a specific reduction notice, must be submitted for review; if, on the other hand, the entire action of the basic income support provider is submitted for review in a general manner and without reference to an individual case, no obligation to review is triggered.
Source: juris.bundessocialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Bavarian State Social Court, decision of 21 May 2014 – L 7 AS 347/14 B ER
For the storage of bank statements in the administrative file
Guiding principles (Juris):
1. Persons applying for benefits under the German Social Code, Book II (SGB II), are obliged, upon request, to submit bank statements for the last three months to the job center.
2. The submission of bank statements for inspection is a lawful collection of data pursuant to Section 67a Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X).
3. Storing bank statements in the administrative file constitutes lawful data storage pursuant to Section 67c of the German Social Code, Book X (SGB X). It is irrelevant whether the bank statements show income that can be taken into account.
Source: socialcourtsability.de
Note:
See also Bay LSG, decision of 14 November 2013 – L 7 AS 579/13 B ER -.
3.2 – Bavarian State Social Court, Judgment of 24 October 2012 – L 16 AS 389/12 – Appeal pending before the Federal Social Court – B 14 AS 21/14 R –
On the multiple reduction of unemployment benefit II in the case of repeated failure to report.
Legal Principles (Juris):
Reductions pursuant to Section 32 of the German Social Code, Book II (SGB II), as amended on April 1, 2011, due to failure to attend scheduled appointments can be imposed repeatedly without the previous reduction having been formally determined by official notice before the subsequent violation of the reporting obligation occurs. The requirement established in the Federal Social Court's (BSG) judgment of November 9, 2010 (Case No.: B 4 AS 27/10 R) for a prior determination of a sanction by official notice before a reduction can be imposed due to repeated failure to attend appointments is not applicable to the offense of failure to attend appointments under Section 32 of the SGB II as amended on April 1, 2011.
Source: socialcourtsability.de
Note 1:
LSG NRW, decision of 04.09.2012, - L 6 AS 596/12 B - There are no fundamental constitutional concerns regarding the new regulation of Section 32 Paragraph 1 SGB 2, at least when, as in this case, the issue concerns so-called older adults.
Note 2:
Further appeals are pending before the Federal Social Court (BSG) regarding the admissibility of adding reductions for reporting deadlines: B 14 AS 19/14 R – and B 14 AS 20/14 R -.
3.3 – Decision of the Bavarian State Social Court of 27 May 2014, Case No. L 16 AS 352/14 B ER (previously: Social Court Regensburg, 9 April 2014, Case No. S 9 AS 243/14 ER)
Guiding principles by Attorney & Specialist Attorney for Social Law Mathias Klose:
An integration agreement as an administrative act (integration administrative act, Section 15 Paragraph 1 Sentence 6 SGB II) can only be issued by the Jobcenter in the area of SGB II if an attempt has previously been made to conclude a consensual integration agreement; the consensual solution takes precedence over the sovereign solution by unilateral administrative act.
If the validity period of an integration administrative act extends beyond the standard approval period of six months, this deviation must be justified.
Source: www.ra-klose.com
Note 1:
Social Court Munich, decision of 05.06.2014 – S 48 AS 1306/14 ER and Social Court Hamburg, decision of 28.04.2014 – S 58 AS 1238 /14 ER – (both unpublished) held the same view.
Note 2:
See LSG NRW, decision of 24.03.2014 – L 19 AS 250/14 B ER –
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).
3.4 – Bavarian State Social Court, decision of 27 May 2014 – L 16 AS 344/14 B ER
Granting of provisional unemployment benefit II to Polish nationals as part of the balancing of interests.
Guiding principles (Juris):
In preliminary legal protection proceedings, it is not possible to determine whether Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is inapplicable due to a violation of the principle of equal treatment under Article 4 of Regulation (EC) No 883/2004.
Benefits under the German Social Code, Book II (SGB II) can be social assistance benefits within the meaning of Article 24(2) of Directive 2004/38/EC and at the same time special non-contributory cash benefits pursuant to Article 70 of Regulation (EC) No 883/2004.
Source: socialcourtsability.de
Note:
LSG NSB holds a different view, decision of 26.03.2014, L 15 AS 16/14 B ER
3.5 – Bavarian State Social Court, decision of 26 May 2014 – L 11 AS 350/14 NZB
Granting of legal aid for the proceedings on the appeal against the refusal of leave to appeal
Principle (Author):
The Social Court deviates from the jurisprudence of the Federal Social Court when it assumes that, in the absence of a realistic estimate, a deduction may be made corresponding to the costs included in the standard allowance for household energy (cf. Federal Social Court, judgment of 24 November 2011 – B 14 AS 151/10 R – and judgment of 19 October 2010 – B 14 AS 50/10 R –; a different view was apparently still held by the Federal Social Court, judgment of 27 February 2008 – B 14/11b AS 15/07 –).
Source: socialcourtsability.de
3.6 – Lower Saxony-Bremen State Social Court, Judgment of 27 May 2014 – L 11 AS 369/11
Standards: Section 23 Paragraph 3 SGB II (old version) – Keywords: Washing machine as initial equipment, defect before receiving benefits, break after moving
Guiding principles (author)
: Job center must grant applicant the costs for the purchase of the washing machine as a “subsidy”.
The entitlement to benefits for initial furnishing of an apartment also exists if the beneficiary initially refrained from purchasing the necessary household items of their own free will and has already lived for a considerable period of time without these – otherwise essential – items. "Forfeiture" is only considered in exceptional cases (see Federal Social Court, judgment of August 20, 2009 – B 14 AS-45/08-R).
Such a "forfeiture" did not occur simply because the applicant, despite having an entitlement to benefits under Section 23 Paragraph 3 Number 1 of the German Social Code, Book II (SGB II) (old version, now Section 24 Paragraph 3 Number 1 SGB II), which existed from the beginning of her receipt of benefits, did her laundry in a laundromat. Regardless of the fact that this was likely more financially advantageous for the (then responsible) benefit provider and financially disadvantageous for the applicant, it was her free choice to cover the costs of using a laundromat from the funds available to her. The Job Center cannot draw any adverse legal conclusions for the applicant from this with regard to its obligation to provide benefits under Section 23 Paragraph 3 Number 1 SGB II (old version, now Section 24 Paragraph 3 Number 1 SGB II).
Source: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen, full text available here: www.anwaltskanzlei-adam.de
Note:
Cf. LSG BB, Judgment of 17.11.2010 – L 5 AS 1220/07 – Entitlement to initial furnishings for the apartment also exists if the person in need of assistance initially refrained from purchasing the necessary household items of their own free will and has already lived for a longer period of time in an unfurnished or partially furnished apartment.
3.7 – Saxon State Social Court, decision of 30 April 2014 – L 7 AS 502/14 B ER
Provisional granting of unemployment benefit II to Romanian nationals – grounds for the order for the past (assumption of rent arrears) affirmed.
Guiding Principles (Author):
The exclusion provision of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) violates higher-ranking law, namely Articles 18 and 21 of the Treaty on the Functioning of the European Union (TFEU) and the principle of equal treatment under Article 4 of Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ EU L 166, p. 1 et seq. (Regulation (EC) No. 883/2004)), insofar as Union citizens entitled to freedom of movement are affected.
Following the judgment of the Court of Justice of the European Union (CJEU) of 19 September 2013 – C-140/12 (“Brey”), it must be noted that Section 7(2), sentence 2, no. 2 of the German Social Code, Book II (SGB II) does not provide for an individual assessment, taking into account the principle of proportionality, for economically active EU citizens, neither with regard to timeframes nor with regard to the connection to the national labor market, nor does it provide for an assessment of the burden on the social security system, even though the CJEU itself considers the exclusion of social benefits without an individual assessment and without an assessment of the burden on the social security system to be incompatible with EU law, even for economically inactive EU citizens (see also: Hessian State Social Court, decision of 30 September 2013 – L 6 AS 433/13 B ER; Bavarian State Social Court, decision of 19 November 2013 – L 7 AS 753/13 B ER; Hessian State Social Court, judgment of 20 September 2013 – L 7 AS). 474/13; Fuchs, ZESAR 2014, p. 103, 111; see also Behrend, jurisPR-SozR 3/2014, note 1; Janda, ZFSH/SGB 2013, p. 453, 460). Therefore, at the latest after the referral decision of the Federal Social Court (BSG) of December 12, 2013 (B 4 AS 9/13 R), a denial of a claim for an injunction with regard to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) in proceedings under Section 86b Paragraph 2 of the German Social Courts Act (SGG) should no longer be possible if the other eligibility requirements have been credibly demonstrated.
The applicants have credibly demonstrated, at least with regard to the requested accommodation benefits, that they suffered a continuing severe and unreasonable disadvantage from the non-granting of benefits for the period in the past at the time of the court decision.
Source: socialcourtsability.de
3.8 – LSG Hessen, decision of 06.06.2014 – L 6 AS 130/14 B ER
The Hessian State Social Court (LSH) has ruled that a 26-year-old Bulgarian national is entitled to basic income support – against the Advocate General at the European Court of Justice.
Source: www.fr-online.de
Full text of the decision here: www.harald-thome.de (pdf)
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Munich, decision of 05.06.2014 – S 48 AS 1306/14 ER
The court orders the suspension of the objection to the integration administrative act because there are significant doubts about the legality of the decision.
Guiding principles (author):
The integration administrative act proves to be unlawful because the job center, contrary to the legal requirement, ordered a validity period of 12 months without exercising the necessary discretion (cf. BSG, judgment of 14.02.2013 - B 14 AS 195/11 R).
The applicant was not given the opportunity by the JC to participate in the content of a possible integration agreement, but was immediately presented with a fait accompli
The decision is available to the author.
Note:
Similarly, regarding the validity period of an administrative act without discretionary considerations – SG Chemnitz, decision of April 29, 2014 – S 29 AS 1636/14 ER –, unpublished.
4.2 – Cologne Social Court, decision of 16 June 2014 – S 6 AS 2024/14 ER
Order for the suspensive effect of the objection against the integration administrative act
Guiding Principles (Author):
The court has serious doubts about the legality of the integration administrative act, because the obligations imposed on the applicant therein, the violation of which is supposed to result in a reduction of unemployment benefit II, are not described with sufficient precision. Under point 2 of the integration administrative act regarding the applicant's efforts, the following statements can be found:
"During the validity period of the integration agreement, you will undertake at least 3 job applications for employment subject to social security contributions every 4 weeks – starting from the date of signing – and submit the following evidence of this after the aforementioned period: by the 30th of each month, for the first time by 30 June 2014."
The job center issued an integration administrative act that consists of incomplete block sentences regarding the applicant's obligations. It remains completely unclear what evidence the applicant is required to provide and when. The applicant's obligations, who, moreover, did not sign this integration agreement because it was issued as an administrative act, are vague and incapable of establishing a legally enforceable relationship between the parties.
The decision is available to the author.
4.3 – SG Leipzig, decision of 30.05.2014 – S 17 AS 1911/14 ER
Principle (beck – online):
The suspensive effect of an action for annulment against the granting of a loan pursuant to Section 24 of the German Social Code, Book II (SGB II) in lieu of a subsidy also includes the offsetting of the loan repayment claim against due payment claims arising from basic income support, carried out on the basis of the loan.
4.4 – Lübeck Social Court, decision of 12 October 2011 – S 21 AS 942/11 ER – legally binding
Costs of visitation rights in Russia for recipients of basic income support under the German Social Code, Book II (SGB II).
Guiding principles (author):
Under strict conditions, Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) may give rise to a claim for reimbursement of the necessary costs of visitation rights in the Republic of Russia.
Source: socialcourtsability.de
Note:
Regarding the assumption of costs for visitation rights abroad, see: LSG NRW, decision of 17 March 2014 – L 7 AS 2392/13 B ER (Indonesia); SG Bremen, decision of 13 May 2013 – S 23 AS 612/13 ER (Australia) and LSG Rheinland-Pfalz, decision of 24 November 2010 – L 1 SO 133/10 B ER (California).
4.5 – Gießen Social Court, Judgment of 13.08.2013 – S 26 AS 1436/10 – Appeal pending before the Hessian State Social Court under file number L 9 AS 666/13
Unemployment benefit II – Standard allowance for single persons – Residence of the foreign father in the household – No existence of a community of need – No division of accommodation costs according to the per capita principle – Job center misjudges the importance of the standard allowance as securing the minimum subsistence level.
Guiding principles (author):
No assumption of a community of need when living together with a foreigner staying in Germany as a tourist.
A single mother is entitled to the full standard allowance. This can also apply if the child's father lives in the same household, but only if he has no income and does not receive any benefits.
Single parents are entitled to have their reasonable accommodation costs fully covered; halving these costs is illegal.
Source: socialcourtsability.de
Note:
See also Father visiting – Full Hartz IV benefit rate for single mother – read more on n-tv – Advice: www.n-tv.de
5. Decisions of the State Social Courts on Social Assistance (SGB X II)
5.1 – North Rhine-Westphalia State Social Court, decision of 26 May 2014 – L 9 SO 474/13
No entitlement to a one-off grant to cover a subsequent electricity bill claim
Guiding principles (Juris)
1. In the case of decentralized hot water preparation, a subsequent energy cost claim establishes an entitlement to the granting of additional benefits pursuant to Section 30 Paragraph 7 Sentence 2, second half-sentence, first alternative of the German Social Code, Book XII (SGB XII), if and insofar as it is established that the subsequent claim is based on the costs for decentralized hot water preparation.
2. If the energy demand and costs for decentralized hot water preparation are not recorded separately via a technical device, additional benefits pursuant to Section 30 Paragraph 7 Sentence 2 Second Half-Sentence 1st Alternative SGB XII are generally excluded.
3. An increase in the standard benefit rate pursuant to Section 27a Paragraph 4 Sentence 1 Alternative 2 of the German Social Code, Book XII (SGB XII) due to a subsequent demand for electricity costs is not possible; in this respect, only the granting of a loan pursuant to Section 37 Paragraph 1 of the German Social Code, Book XII (SGB XII) is possible.
Source: socialcourtsability.de
Note:
See SG Dortmund, Judgment of 20.09.2013 – S 41 SO 132/12
Editorial guideline (Jurion):
1. With regard to Section 30 Paragraph 7 Sentence 2 Number 5 of the German Social Code, Book XII (SGB XII) ("unless a different need exists in an individual case"), the provision permits the determination of a need for hot water costs that deviates from the prescribed flat rate, up to the amount of the actual – reasonable – costs. Section 30 Paragraph 7 of the SGB XII also permits the social welfare agency to cover one-time additional charges.
2. A "different need in an individual case" within the meaning of the provision can only refer to a need for hot water or costs for hot water preparation that is higher than the prescribed flat rate and cannot be covered by the flat rate provided for in Sentence 2 Number 1.
3. If there is an additional need for household electricity to be financed from the standard allowance, a deviating determination of need is generally possible under the conditions of Section 27a Paragraph 4 Sentence 1 Alternative 2 of the German Social Code, Book XII (SGB XII). According to this provision, the individual need is determined differently from the standard allowance in individual cases if a need unavoidably deviates significantly in amount from an average need.
6. Decisions on asylum law
6.1 – Social Court Duisburg, judgment of 01.04.2014 – S 44 AY 140/12 – legally binding – The appeal is admitted.
Regarding the legal question of whether the analogous application of Section 116a of the German Social Code, Book XII (SGB XII), beyond the case scenario decided by the Federal Social Court (BSG), also applies to all other case scenarios.
Source: sozialgerichtsbarkeit.de
7. Stefan Sell: People on Hartz IV: "Forgotten" and lost between systems, where there's supposed to be "one-stop help"?
Things (and people) are regularly thrown into disarray, and many are lost in the process. Once again, the focus is on the numbers. When the unemployed are discussed, the media almost exclusively mentions the number of "registered unemployed," which is announced monthly by the Federal Employment Agency (BA). This figure currently stands at 2,882,000 people, of whom 883,000 are in the SGB III system, i.e., the "classic" unemployment insurance. The largest number are in the SGB II or basic income support system, colloquially known as Hartz IV: 1,989,000 people.
But the 2.9 million people should only be understood as a lower limit of the actual problem. The Federal Employment Agency (BA) itself cites another figure that is a) more realistic for illustrating the problem of unemployment and b) also significantly higher: 3,801,000. This is the number of underemployed. And 3.8 million is already considerably more than the official 2.9 million unemployed.
Read more: www.aktuelle-sozialpolitik.blogspot.de
8. Assumption of Rent Arrears Even in Repeated Cases – An Article by Attorney Helge Hildebrandt
In Kiel, the assumption of rent arrears is routinely refused by the administration if rent arrears have already accrued in the past. In its legal ruling of June 5, 2014, the Kiel Social Court has now declared this practice unlawful.
More information: sozialberatung-kiel.de
Note:
A different view – Baden-Württemberg Higher Social Court (LSG) decision of March 13, 2013 – L 2 AS 842/13 ER-B – holds that the repeated misuse of funds (here for rent payments) suggests that the recipient of benefits deliberately withholds rent in the expectation that arrears will be covered later. In such a case of socially unacceptable incurrence of rent arrears despite sufficient funds, the granting of assistance does not appear justified (following Baden-Württemberg Higher Social Court, decision of March 1, 2011 – L 12 AS 622/11 ER-B with reference to Rhineland-Palatinate Higher Social Court, decision of December 27, 2010 – L 3 AS 557/10 B ER -).
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
