1. Decisions of the Federal Social Court of 17 July 2014 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 17 July 2014 – B 14 AS 54/13 R
Guiding principles (author):
When three generations, each in need of assistance, live together in one household (mother, adult daughter, minor granddaughter), the child benefit paid to the parent entitled to child benefit of the adult child and passed on to this child must be taken into account in relation to the needs of the parent entitled to child benefit.
Child benefit for adult children who do not belong to the benefit unit but live in the household is legally allocated to the person entitled to the child benefit and must be considered as income for that person pursuant to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) (see, for example, the Federal Social Court's judgment of March 19, 2008 – B 11b AS 13/06 R). It is legally irrelevant that the applicant's mother actually passed on the child benefit to her. This use of the child benefit income allocated to the mother pursuant to Section 11 Paragraph 1 Sentence 1 of the SGB II does not establish a new income allocation.
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 17 July 2014 – B 14 AS 25/13 R
Multiple consideration of the basic tax allowance of 100 euros within one month and a deviation from the accrual principle are required if two wages are received within one calendar month.
Principle (Author):
If a person entitled to benefits with only one employment relationship receives wages earned over several months within a month, then the income intended for the subsequent months must also be adjusted by the basic allowance according to § 11 para. 2 sentence 2 SGB II aF (now § 11b para. 2 sentence 2 SGB II).
Source: juris.bundessocialgericht.de
Note:
This was already the case in the judgments of the Higher Social Court of North Rhine-Westphalia (LSG NRW) of December 18, 2012 – L 7 AS 652/12 – and the Social Court of Berlin (SG Berlin) of January 18, 2012, file number: S 55 AS 30011/10 – as well as the Social Court of Schleswig (SG Schleswig) of September 26, 2011, S 3 AS 1273/09, the appeal of which is pending before the Higher Social Court of Schleswig-Holstein (SH LSG) under file number: L 6 AS 91/11, and was withdrawn by the Job Center (JC) on February 15, 2013.
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 19/13 R
Notice of cancellation and reimbursement – application for review pursuant to Section 44 of the German Social Code, Book X – no limitation period
The limitation periods of § 44 IV SGB X also in conjunction with § 40 I 2 SGB II are not unlimited.
Unlawful cancellation and reimbursement notices must be revoked even after the expiry of the objection or appeal period if they prove to be unlawful years later.
Source: Attorney Thomas Lange: 19.75 euros will cost job centers dearly:
rechtsanwalt-grossraeschen.de
3. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – State Social Court of Mecklenburg-Vorpommern, Decision of 28 May 2014 – L 8 AS 169/14 B ER – L 8 AS 171/14 B PKH
Key Principles (Juris)
The requested assurance pursuant to Section 22 SGB II is aimed at a higher monetary benefit, namely the housing costs for the new apartment being €40.97 higher per month. In the area of basic income support for job seekers, when determining the value in dispute for an appeal pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), the regular six-month benefit period pursuant to Section 41 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) – or, in the (not applicable here) special case of Section 41 Paragraph 1 Sentence 5 SGB II, a maximum of twelve months – must be taken into account. A higher value in dispute cannot be achieved solely on the basis of the purely hypothetical possibility of receiving benefits beyond the benefit period.
Source: www.landesrecht-mv.de
Note:
See LSG BB, decision of 01.07.2014 – L 14 AS 1360/14 B ER – On the admissibility of an appeal in the case of an assurance pursuant to Section 22 Paragraph 4 Sentence 1 SGB II.
3.2 – Rhineland-Palatinate State Social Court, Judgment of 25 March 2014 – L 3 AS 44/10 ZVW
Unemployment benefit II – Adequacy of accommodation costs – Lack of a coherent concept – Job center's data as the basis for a coherent concept – No improvement of the concept through expansion of the scope of investigation – Application of the housing benefit table
Guiding principles (Juris)
1. There is no general rule of experience stating that recipients of benefits under the German Social Code, Book II (SGB II) constitute a representative sample of all tenants, since they live in apartments of all standards in a distribution that approximately corresponds to the totality of tenants.
2. The data held by a job center is generally not a sufficient basis for a sound concept for determining reasonable rent, as the data on recipients of unemployment benefit II (ALG II) do not reflect the overall housing market of the relevant comparison area. If a benefit provider has erroneously based its concept on its own data, expanding the scope of the investigation to include the entire housing market does not constitute a correction, but rather the creation of a new concept.
Source: socialcourtsability.de
Note:
See also: Küttner Lawyers – Judgment of the Higher Social Court on housing costs under the German Social Code, Book II (SGB II) in Zweibrücken: kanzlei-kuettner.de
3.3 – Berlin-Brandenburg State Social Court, Decision of July 1, 2014 – L 14 AS 1360/14 B ER – legally binding.
Regarding the admissibility of an appeal concerning an assurance pursuant to Section 22 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II). The applicant has already concluded the lease agreement for the apartment for which she is seeking the assurance, effective August 1, 2014. Therefore, the need for legal protection in the present legal proceedings has ceased.
Principle (Author):
The assurance, which constitutes a preliminary partial arrangement for the assumption of higher reasonable housing costs after a move, does not have binding effect for a specific benefit period, but rather remains in effect indefinitely if the factual and legal situation remains essentially unchanged, in particular if the need for assistance continues. This corresponds to the purpose of the assurance, which is to provide the beneficiary with planning security. However, since the assurance, as the basis for the entitlement to ongoing benefits for housing costs up to a certain amount, extends beyond the period of a benefit award, the beneficiary's interest in the assurance cannot be limited to a maximum period of one year (contra: Schleswig-Holstein Higher Social Court, decision of February 28, 2012 – L 6 AS 145/11 B PKH –, Saxony-Anhalt Higher Social Court, decision of June 13, 2012 – L 5 AS 189/12 B ER –).
Source: socialcourtsability.de
3.4 – Bavarian State Social Court, decision of 24 June 2014 – L 7 AS 446/14 B ER
In principle, there is no preventive legal protection against future sanctions
Guiding Principles (Juris)
1. An integration administrative act pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) is immediately enforceable pursuant to Section 39 No. 1 of the SGB II. Preliminary legal protection against obligations arising from the integration administrative act must be sought by filing an application for an order suspending its enforcement pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the German Social Courts Act (SGG).
2. The integration administrative act does not contain any sanctions pursuant to Sections 31 et seq. of the German Social Code, Book II (SGB II). If the person concerned wishes to suspend obligations arising from the integration administrative act in order to prevent future sanctions, he seeks preventive legal protection.
3. Preventive legal protection requires a qualified interest in legal protection, which includes, in particular, that the affected party cannot be referred to subsequent legal remedies. Subsequent legal remedies are generally possible and sufficient against sanctions. Preliminary legal protection is generally not intended to answer legal questions unrelated to a present emergency.
Source: socialcourtsability.de
Note:
BayLSG (Bavarian State Social Court) held the same view in its decision of December 20, 2012, L 7 AS 862/12 B ER.
3.5 – Bavarian State Social Court, Judgment of 14 May 2014 – L 11 AS 261/12
Guiding Principles (Juris):
The consideration of a need for accommodation requires solely that the benefit recipient is subject to a valid rent claim that is not permanently deferred. If the benefit recipient does not pay their rent because they spend the approved benefits elsewhere, this does not retroactively invalidate their entitlement to benefits.
Source: sozialgerichtsbarkeit.de
Court's Note:
Any compensation for use that the landlord is undoubtedly entitled to if the benefit recipient does not vacate the apartment after notice of termination would have to be considered as an expense under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
3.6 – Lower Saxony-Bremen State Social Court, Judgment of 11 June 2014 – L 13 AS 334/11
Matters under the German Social Code, Book II (SGB II) – consistency of the operative part of a revocation and recovery notice – obvious error
Guiding Principles (Juris):
A decision which, in the operative part of the decision, contains a clause stating that a cancellation of €100.00 will take place, in the grounds for the decision and which is highlighted in the printing, is not therefore indefinite, but rather – at least in the individual case at hand – exhibits an obvious inaccuracy within the meaning of Section 38 of the German Social Code, Book X (SGB X), which can be rectified at any time.
Source: socialcourtsability.de
Note:
Similarly, LSG NSB, judgment of 26.02.2013 – L 11 AS 1394/09 – When examining the definiteness of an administrative act, it is not only the original decision that is to be considered, but also the objection decision issued in this regard.
3.7 – LSG Lower Saxony-Bremen, Judgment of May 27, 2014 (Case No.: L 11 AS 369/11):
Guiding principles of Dr. Manfred Hammel:
A washing machine is one of the household appliances required for orderly household management within the meaning of Section 24 Paragraph 3 Sentence 1 No. 1 SGB II.
The term "initial furnishing" in this sense is to be interpreted purely in terms of need. The decisive factor is always that there is a legitimate need for furnishing an apartment that is not already covered by existing items or otherwise.
Applicants must prove to the SGB II provider that they – usually due to special events – do not yet or no longer have the necessary equipment.
These extraordinary events also include the establishment of a new household after separation from a previous partner.
The right to these benefits is not forfeited even if an applicant has always washed her laundry at a laundromat while receiving unemployment benefit II. A claim for benefits for the initial furnishing of an apartment also exists if the eligible person initially voluntarily refrained from purchasing the necessary furnishings and lived for an extended period without these – generally essential – items.
3.8 – Lower Saxony-Bremen State Social Court, decision of 26 May 2014 – L 11 AS 1343/13 B ER
Guiding Principles (Juris)
1. The appropriateness of housing costs (§ 22 SGB II) is determined on the basis of a so-called conclusive concept. The benefit provider does not have the option of choosing whether to create a conclusive concept or to decide based on the table values according to § 12 WoGG.
2. If a benefit provider continues to rely on the table values according to the Housing Benefit Act (WoGG) in 2013 (as it has done since August 2011), it has failed to conduct demonstrably necessary investigations during the administrative proceedings. The costs of the subsequent investigations carried out in court proceedings can be imposed on the benefit provider (§ 192 para. 4 SGG).
3. The determination of the type and scope of the investigations to be carried out in the court proceedings is at the court's discretion, so that the benefit provider cannot successfully argue in its appeal against the cost decision pursuant to Section 192 Paragraph 4 of the Social Court Act (SGG) that it considers the investigations carried out by the court to be unnecessary.
4. The cost decision of the Social Court pursuant to Section 192 Paragraph 4 of the Social Courts Act (SGG) is to be reviewed by the Higher Social Court in the appeal proceedings – like all other discretionary decisions of the Social Court – only for possible errors of discretion.
Source: socialcourtsability.de
3.9 – Lower Saxony-Bremen State Social Court, Judgment of 31 March 2014 – L 11 AS 1445/10
Guiding Principles (Author):
Costs for double rent payments due to a change of residence (so-called overlap costs) are housing procurement costs within the meaning of Section 22 Paragraph 3 SGB II aF or Section 22 Paragraph 6 SGB II nF (cf. LSG Lower Saxony-Bremen, decision of September 10, 2013 – L 7 AS 592/11 B, with further references; deviating in this respect: LSG Berlin-Brandenburg, judgment of January 31, 2013 – L 34 AS 90/11).
Under the German Social Code, Book II (SGB II), double rent payments are only covered if they are unavoidable and the responsible benefit provider has given prior approval.
An appeal on points of law to the Federal Social Court (BSG) has been lodged (B 4 AS 199/14 B).
Source: socialcourtsability.de
3.10 – North Rhine-Westphalia State Social Court, decision of 26 June 2014 – L 6 AS 980/14 B ER and – L 6 AS 981/14 B – legally binding
exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II – provisional provision of benefits pursuant to Section 40 Paragraph 2 No. 1 SGB II in conjunction with Section 328 Paragraph 1 Sentence 1 No. 1 SGB III – reduction of discretion to zero
Guiding principle (author):
No exclusion of benefits for Romanian nationals, because the benefits in question here for covering standard needs are those to which, according to Section 328 Paragraph 1 Sentence 1 Number 1 of the German Social Code, Book III (SGB III), there is a legal entitlement if discretion is correctly assessed.
In view of the subsistence-securing nature of the benefits and the fundamental right to a dignified minimum standard of living derived from Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 GG, the discretion of the benefit provider is so severely restricted and reduced to zero with regard to the standard benefit applied for that it was also necessary to grant it provisionally on this legal basis (cf. Thuringian Higher Social Court, decision of April 25, 2014 – L 4 AS 306/14 B ER; Berlin-Brandenburg Higher Social Court, decision of May 27, 2014 – L 34 AS 1150/14 B ER; Halle/Saale Social Court, decision of May 30, 2014 – S 17 AS 2325/14 ER, with further references, each concerning the reduction of discretion to zero for subsistence-securing benefits under Book II of the German Social Code).
Source: socialcourtsability.de
3.11 – North Rhine-Westphalia State Social Court, decision of 27 June 2014 – L 7 AS 445/14 B – legally binding.
Principle (author):
An administrative act concerning integration that, without discretionary considerations, orders a validity period of seven months deviating from the statutory standard period (§ 15 para. 1 sentence 3 SGB II) is unlawful (cf. also Federal Social Court, judgment of 14 February 2013 – B 14 AS 195/11 R).
Source: sozialgerichtsbarkeit.de
Note:
Social Court Hamburg, decision of 28.04.2014 – S 58 AS 1238 /14 ER (unpublished); Higher Social Court of North Rhine-Westphalia, decision of 17.10.2013 – L 7 AS 836/13 B – and Social Court Munich, decision of 05.06.2014 – S 48 AS 1306/14 ER (unpublished).
4. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
4.1 – Social Court Berlin, Judgment of 17 June 2014 – S 173 AS 12742/13
Housing benefit table instead of WAV Berlin – no conclusions regarding appropriate rent can be drawn from the Berlin rent index 2013 – an article by attorney Kay Füßlein
Following the declaration of invalidity of the WAV Berlin, the question naturally arises as to how the resulting regulatory gap can now be filled.
There are two possibilities in this regard: On the one hand, one can refer to the Berlin rent index, which is described as "qualified", then the court can also try to exhaust its own means of obtaining information and finally – if all investigations fail – in accordance with the established case law of the Federal Social Court, grant the table amounts according to §12 of the Housing Benefit Act plus a safety surcharge plus heating costs.
There are considerable concerns regarding the "qualified" rent index for a variety of reasons; in civil courts, it is currently being examined whether the Berlin rent index is even a qualified one.
My fundamental question is what conclusions relevant to basic income support can actually be drawn from a rent overview intended for entirely different purposes. As the 2013 rent index shows, for example, asking rents were hardly included in the overview (final report of the Berlin rent index).
On the other hand: The Social Court of Berlin, in its judgment of 17 June 2014, S 173 AS 12742/13, explained in detail why no conclusions regarding appropriate rent can be drawn from the Berlin Rent Index 2013; in particular, reference should be made to page 9 ff.
In short, the court agrees with my legal opinion and the plaintiff's view that there are simply too few apartments available at these prices and that the price increases are not reflected.
The Chamber concluded that, in accordance with the case law of the Federal Social Court, the housing benefit table plus a safety margin of 10% plus heating costs must be applied (as already stated in the judgment of the Social Court of Berlin of 22.02.2013 - file number: S 37 AS 30006/12).
Read more: Judgment of the Social Court of Berlin of 17 June 2014 – S 173 AS 12742/13: www.ra-fuesslein.de (pdf)
4.2 – Social Court Berlin, decision of 10 July 2014 – S 81 KR 1172/14 ER
A Bulgarian national is compulsorily insured under Section 5 Paragraph 1 No. 2a of the German Social Code, Book V (SGB V), if ALG II (unemployment benefit II) is granted (only) provisionally.
Legal Principles (Juris):
The provisional granting of unemployment benefit II by way of preliminary legal protection establishes compulsory insurance in the statutory health insurance system, unless exceptions apply. The provisional granting does not constitute a loan within the meaning of Section 5 Paragraph 1 No. 2a of the German Social Code, Book V (SGB V).
Source: socialcourtsability.de
4.3 – Augsburg Social Court, Judgment of 16 June 2014 – S 11 AS 346/14
Legal fees – Determining the appropriate fee – Challenging payment order fees
Principle (Author):
The remuneration of a lawyer for an additional objection procedure against the reminder fee in addition to the objection procedure against the reimbursement claim in the amount of the minimum fee of 80.00 euros is appropriate.
Based on court decisions in comparable cases, it is not apparent that a business fee higher than 80 euros would be considered appropriate in the present case.
In the area of case law of the chambers responsible for matters under the German Social Code, Book II (SGB II), the Social Court of Detmold (judgment of January 23, 2014, S 18 AS 1422/13) and the Social Court of Berlin (decision of March 14, 2013, S 165 SF 18406/11) have also confirmed the appropriateness of the business fee of 80 euros.
Most recently, the Lower Saxony-Bremen State Social Court even confirmed the appropriateness of a business fee of 40 euros in its decision of 10 April 2014, L 7 AL 94/13.
Source: socialcourtsability.de
4.4 – SG Detmold, Judgment of 09.04.2014 – S 6 AS 1930/13 – not legally binding, appeal allowed.
Principle (Author):
The provision of Section 42a Paragraph 2 of the German Social Code, Book II (SGB II) does not apply to rental deposit loans.
Note: See LSG NRW, judgment of 30 January 2014 – L 6 AS 1154/13 – appeal pending before the BSG under file number B 14 AS 28/14 R – The unrestricted application of the new legal regulation to rental deposits – old loans raises serious constitutional concerns from the perspective of the protection of legitimate expectations.
4.5 – Cologne Social Court, judgment of 22 May 2014 – S 30 AS 2116/13
Principle:
Dismissal of a standard needs claim for single adults (cf. Federal Social Court, judgments of July 12, 2012, B 14 AS 153/11 R, B 14 AS 189/11 Rund of March 28, 2013, B 4 AS 12/12 R). The Federal Constitutional Court did not accept the constitutional complaints against the judgments of July 12, 2012 for decision (Federal Constitutional Court, decisions of November 20, 2012, 1 BvR 2203/12 and December 27, 2012, 1 BvR 2471/12).
4.6 – SG Braunschweig, Judgment of 09.04.2014 – S 49 AS 2184/12 – legally binding:
Jobcenter must pay travel expenses for prison visits
Guiding principles (author):
The job center must cover the costs of visits to the incarcerated son. Trips to the prison constitute a special need according to § 21 para. 6 SGB II.
The parents' visits to their son were necessary to maintain family cohesion.
Source: socialcourtsability.de
4.7 – Social Court Cottbus, Judgment of 15 May 2014 – S 14 AS 4304/13
Application for priority social benefits – exercise of discretion – application submitted by the basic income support provider – settlement – declaratory judgment action – legitimate interest in a declaratory judgment – substitute performance – enforcement of an administrative act – enforcement – claim for redress
Guiding Principles (Juris):
1.) Both the request to apply for priority social benefits (here, old-age pension) and the application submitted by the basic income support provider require the exercise of discretion. The request to apply for a priority social benefit is an administrative act.
2.) The requirement to personally apply for priority social benefits (here, old-age pension) is not rendered moot by the basic income support provider's own application. The appeal therefore remains admissible.
3.) The requirement to personally apply for priority social benefits (here, old-age pension) is not enforced by the applicant's own application submitted by the social security provider. In particular, the applicant's own application is not a substitute performance within the meaning of enforcement law.
4.) The basic income support provider's own application cannot be withdrawn in the sense of a claim for the removal of consequences.
5.) The basic income support provider's own application can also be withdrawn by the recipient of assistance at any time, but the recipient still has an interest in establishing the illegality of the basic income support provider's own application.
Source: socialcourtsability.de
Note:
Different view – Social Court Hannover, judgment of 15.01.2013 – S 68 AS 1296/12 – claim for removal of consequences – obligation of the basic income support provider to withdraw the pension application submitted by way of substitute performance.
5. Decisions of the State Social Courts on Social Assistance (SGB X II)
5.1 – Lower Saxony-Bremen State Social Court, decision of 10 April 2014 – L 8 SO 506/13 B ER
Benefits for integration aides (school assistance) within the framework of a personal budget
Guiding principles (Juris)
1. On the prerequisites for granting integration assistance benefits as part of a cross-provider personal budget pursuant to Section 57 of the German Social Code, Book XII (SGB XII) in conjunction with Section 17 of the German Social Code, Book IX (SGB IX).
2. The approval of a personal budget within the meaning of Section 17 of the German Social Code, Book IX (SGB IX) requires the implementation of a cross-provider needs assessment procedure and the conclusion of a target agreement within the meaning of Section 4 of the Budget Ordinance.
3. The potentially unlawful but effective granting of a personal budget precludes the assertion of the original claim for the provision of benefits in kind (§§ 53, 54 SGB XII) or a claim for reimbursement of costs (§ 15 para. 1 sentence 4, 2nd alternative SGB IX) against the social welfare provider.
4. The provision of an integration aide during an afternoon working group offered by the school and on a voluntary basis for the students can constitute assistance for appropriate schooling within the meaning of Section 54 Paragraph 1 Sentence 1 No. 1 SGB XII, if this event is in a temporal, spatial and personal connection with school attendance within the framework of compulsory education that is sufficient in relation to the purpose of the assistance.
5. In social assistance law, the service and remuneration agreements of the responsible social assistance provider pursuant to Section 75 Paragraph 3 of the German Social Code, Book XII (SGB XII) in conjunction with Section 17 of the German Social Code, Book IX (SGB IX) are generally decisive for the calculation of the personal budget within the meaning of Section 57 of the German Social Code, Book XII (SGB XII). A civil law agreement between the beneficiary and the service provider that involves higher costs cannot generally be taken into account when calculating the personal budget.
Source: socialcourtsability.de
6. Decisions on asylum law
6.1 – State Social Court of Saxony-Anhalt, decision of 19 June 2014 – L 8 AY 15/13 B ER
The fundamental obligation of the benefit provider to provide full benefits, even when the factual prerequisites of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are met, cannot be achieved solely through a constitutionally compliant interpretation (see Lower Saxony-Bremen Higher Social Court, decision of February 18, 2014 – L 8 AY 70/13 B ER; decisions of the adjudicating panel of August 19, 2013 – L 8 AY 3/13 – and of September 2, 2013 – L 8 AY 5/13 B ER; left open in Federal Social Court, judgment of October 30, 2013 – B 7 AY 7/12 R; contra: Berlin-Brandenburg Higher Social Court, decisions of December 10, 2013 – L 15 AY 23/13 B ER – and – L 15 AY 24/13 B ER; Rhineland-Palatinate Higher Social Court, decision of March 27, 2013). – L 3 AY 2/13 B PKH ; Hessian State Social Court, decision of January 6, 2014 – L 4 AY 19/13 B ER). The constitutionally compliant interpretation of a provision requires that, of several interpretations, one interpretation, e.g. by teleological reduction, is compatible with the Basic Law.
Guiding Principles (Author):
The regulation in Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) does not primarily focus on (general) migration policy considerations that affect all benefit recipients equally. Rather, the regulation in Section 1a AsylbLG concerns sanctions in individual cases (as also concluded here by the Higher Social Court of Thuringia, decision of January 17, 2013 – L 8 AY 1801/12 B ER; the Higher Social Court of Lower Saxony-Bremen, decisions of March 20, 2013 – L 8 AY 59/12 B ER – and of February 18, 2014 – L 8 AY 70/13 B ER; decisions of the adjudicating panel of judges of August 19, 2013 – L 8 AY 3/13 – and of September 2, 2013 – L 8 AY 5/13 B ER).
Source: socialcourtsability.de
6.2 – Social Court of Hanover, Judgment of 04.07.2014 – S 53 AY 75/13
Regarding the admissibility of reducing monetary benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) by the amount for household electricity when needs are met through accommodation in a refugee residence
Guiding principles (Juris)
1. If the foreigner in need of assistance receives electricity as a benefit in kind through accommodation in a refugee residence, the benefit provider is entitled to reduce the cash benefits by the electricity component included in the standard benefits in order to avoid double payments.
2. A reduction of the cash benefits for the years 2012 and 2013 by EUR 28.12 per month does not infringe upon the subjective rights of the foreigner in need of assistance.
Source: socialcourtsability.de
7. Federal Court of Justice (BGH), Judgment of 16 July 2014 – IV ZR 55/14
There is no general entitlement for social assistance recipients to be included in the basic tariff of private health insurance.
The Federal Court of Justice (BGH) has ruled that recipients of social assistance who would be subject to compulsory health insurance were they not receiving social assistance are not entitled to enrollment in the basic tariff of private health insurance. This also applies to individuals whose receipt of benefits first began on or after January 1, 2009.
(BGH), Press Release No. 111/2014: juris.bundesgerichtshof.de
8. Higher Regional Court of Braunschweig on fines for Hartz IV recipients
Fine for Hartz IV recipients
According to the Higher Regional Court of Braunschweig, the net income of Hartz IV recipients also includes benefits for accommodation and heating.
When determining the daily rate of a fine, if the net income of a defendant receiving Hartz IV benefits is to be ascertained pursuant to Section 40 Paragraph 2 Sentence 2 of the German Criminal Code (StGB), then in addition to the standard benefit rate, other benefits in kind must also be taken into account. According to the Higher Regional Court of Braunschweig, the daily rate is not to be reduced solely because the defendant receives benefits under Book II of the German Social Code (SGB II). This is because the Hartz IV standard benefit rate covers not only the physical subsistence minimum, but also, to the extent of 30%, the socio-cultural subsistence minimum, which may be accessed in the public interest if necessary.
Practical note: In individual cases, a reduction in the daily rate may be appropriate for low-income individuals. However, the Higher Regional Court of Braunschweig rejects the general principle of limiting the daily rate to four times the difference between essential living expenses and standard benefits plus in-kind benefits (as held by the Higher Regional Court of Stuttgart, NJW 1994, 745).
OLG Braunschweig, decision of 19 May 2014 – 1 Ss 18/14 = BeckRS 2014, 10852 (Source: NJW-Spezial, Issue 13, 2014, 409)
Higher Regional Court of Braunschweig, Decision of 19 May 2014 – 1 Ss 18/14: dejure.org;
Higher Regional Court of Stuttgart, Decision of 5 March 1993 – 2 Ss 60/93: dejure.org
Stuttgart Regional Court, Decision of 27 September 2007 – 7 Qs 95/07: dejure.org
Cologne Higher Regional Court, Decision of 10 June 2011 – III-1 RVs 96/11 – 82 Ss 30/11: dejure.org
Note by Dr. Manfred Hammel in info also 2012, 54.
Short version: www.soziales-netzwerk-bgs.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
