1. Decisions of the Federal Social Court of 06.08.2014 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 06.08.2014 – B 4 AS 55/13 R
Disabled people receiving training allowances are excluded from basic benefits under SGB II.
Guiding Principles (Author):
According to Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II aF), trainees whose training is eligible for funding under Sections 60 to 62 of the German Social Code, Book III (SGB III), are not entitled to benefits to secure their livelihood. This also applies if the Federal Employment Agency (BA) provides the training as a service for the participation of disabled people in working life.
According to the established case law of the Federal Social Court (BSG), for the purposes of Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), the sole determining factor is the abstract eligibility of the training for funding under Sections 60 to 62 of the German Social Code, Book III (SGB III). This eligibility was met in this case.
Even considering the purpose of excluding trainees from benefits, it is consistent to extend this exclusion to those receiving participation benefits. In this respect, there is no difference between non-disabled and disabled individuals in vocational training that is, in principle, eligible for funding.
Source: juris.bundessozialgericht.de
Note:
Regarding the relevance of abstract eligibility for funding under Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), see the Federal Social Court (BSG) judgment of March 28, 2013 – B 4 AS 59/12 R, paragraph 20 with further references.
1.2 – BSG, Judgment of 06.08.2014 – B 4 AS 57/13 R
A multi-year addiction does not justify an entitlement to initial housing furnishings
Guiding principles (author)
According to the case law of the two senates of the BSG responsible for basic income support for job seekers, an “initial furnishing of an apartment” can also be considered in the event of a renewed need for the initial procurement of furnishings.
This, however, presupposes that 1) exceptional circumstances or a special event, 2) a "special need," and 3) a causal link between the exceptional circumstances or special event and the need exist. As with the initial purchase, a needs-based approach is also required for a subsequent purchase that is considered equivalent in terms of its value. Exceptional circumstances or a special event cannot be recognized if the need arose gradually as a result of the generally normal wear and tear process, even if personal factors played a role. Rather, circumstances or events acting "from the outside" are required. These must, insofar as they do not involve changes to the apartment or the living situation, be regularly capable of causing the sudden "destruction" or unusability of the apartment furnishings, independent of other general reasons.
In the present case, there is no "extraordinary circumstances" or "special event." The applicant's multi-year addiction, even though it involved states of intoxication, does not constitute an event or circumstance of the type described above that is regularly capable of causing the sudden destruction or unusability of the furnishings and household items.
Source: juris.bundessocialgericht.de
1.3 – BSG, Judgment of 06.08.2014 – B 4 AS 37/13 R
Cost reduction through subletting – rental income is not considered income
Guiding principles (author)
: In principle, income from subletting parts of the rented accommodation must be taken into account as a cost-reduction measure within the framework of calculating the costs of accommodation.
Payments made from such sources do not constitute income within the meaning of Section 11 of the German Social Code, Book II (SGB II), unless the proceeds exceed the actual housing costs. This follows from the wording of the law, the explanatory memorandum to the draft law, the systematic context, and the purpose of the regulation.
Source: juris.bundessozialgericht.de
Note 1:
See LSG Hamburg, judgment of 07.01.2013 – L 4 AS 315/12 and LSG Schleswig-Holstein, judgment of 12.4.2010 – L 6 AS 37/10 – Income that a benefit recipient receives from renting out self-occupied accommodation is not to be treated as income within the meaning of § 11 SGB II, but directly reduces the expenses for accommodation to be taken into account by way of § 22 para. 1 SGB II.
Note 2:
Left open by the Federal Social Court (BSG) in its judgment of November 29, 2012 – B 14 AS 161/11 R, para. 19
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of North Rhine-Westphalia, decision of 24.07.2014 – L 19 AS 1088/14 B ER – legally binding
On the additional needs amounting to EUR 249.50 per month for Xylosolv capsules by way of preliminary legal protection.
Guiding Principles (Author):
The costs of Xylosolv cannot, in principle, justify an expensive diet. Medical products are not considered part of nutrition within the meaning of Section 21 Paragraph 5 of the German Social Code, Book II (BSG Judgment of May 26, 2011 – B 14 AS 146/10 R).
The applicant also has no claim under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), because the Federal Social Court (BSG) (judgment of December 12, 2013 – B 4 AS 6/13 R) expressly ruled that the provision of benefits by the SGB II agency is precluded if the statutory health insurance (GKV) covers the costs of medically necessary treatment. The plaintiff has not argued, and it is not apparent due to the lack of involvement of the health insurance fund, that alternatives to the treatment of the plaintiff's illness with Xylosolv, which are provided by the statutory health insurance within the framework of medical treatment under Section 27 of the German Social Code, Book V (SGB V), were not available.
Therefore, the principles established by the 14th Senate (judgment of May 26, 2011 – B 14 AS 146/10 R) apply. However, this Senate expressly stated: “The remaining costs for healthcare, which include medically necessary over-the-counter (OTC) medications not covered by statutory health insurance and which, from the perspective of the statutory health insurance policyholder's personal responsibility, must also be paid by those receiving assistance under Book II of the German Social Code (SGB II), are included in the standard benefit and thus do not, in principle, trigger a need under Section 73 of Book XII of the German Social Code (now: Section 21 Paragraph 6 SGB II).”
Furthermore, the applicant cannot invoke any grounds for an injunction. Assuming the applicant's stated need, this would amount to €224.50. In this respect, the applicant must be referred to the monthly earnings allowance of €230. Within the context of the grounds for the injunction, the decisive factor is not which income the respondent is legally entitled to have taken into account, but rather which income he actually has (North Rhine-Westphalia Higher Social Court, decision of September 19, 2007 – L 7 B 215/07 AS ER).
Source: sozialgerichtsbarkeit.de
Court's note:
In light of the foregoing, the Senate does not need to address, at least in preliminary injunction proceedings, the question of how far the fact that costs are being claimed which would also financially overburden a low- or average-income earner who is not a recipient of benefits under Book II of the German Social Code (SGB II) affects the assessment of the claim for the injunction.
2.2 – North Rhine-Westphalia State Social Court, decision of 28 July 2014 – L 19 AS 948/14 B ER – legally binding
A Bulgarian national has a provisional entitlement to ALG II (unemployment benefit II).
Principles (Author):
A definitive clarification of the question, which has been controversial for years and in several respects, of whether the exclusion of benefits for foreigners who are residing in Germany solely for the purpose of seeking employment is lawful and applicable, is not possible in the present proceedings. In view of the diverse case law with its almost unmanageable range of opinions, and several appeals still pending before the Federal Social Court, a balancing of interests must be undertaken.
In the assessment, it was taken into account that the respondent can protect his financial interests by filing a claim for reimbursement with the local social welfare agency pursuant to Sections 102 et seq. of the German Social Code, Book X (SGB X). This is because, if the exclusion of benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) applies, a claim for benefits under Chapter Three of the German Social Code, Book XII (SGB XII) would be possible. Section 21 sentence 1 of the German Social Code, Book XII (SGB XII) does not apply to those in need of assistance who are excluded from benefits under the German Social Code, Book II (SGB II) (decisions of the Senate of June 29, 2012 – L 19 AS 973/12 B ER with further references and October 2, 2012 – L 19 AS 1393/12 B ER with further references; Higher Social Court of Hamburg decision of January 14, 2013 – L 4 AS 332/12 B ER; regarding the exclusion from benefits when receiving an old-age pension pursuant to Section 7 paragraph 4 SGB II, see also Federal Social Court judgment of May 16, 2011 – B 4 AS 105/11 R; critical Higher Social Court of North Rhine-Westphalia decision of May 15, 2013 – L 9 AS 466/13 B ER).
Source: sozialgerichtsbarkeit.de
2.3 – North Rhine-Westphalia State Social Court, decision of 18 July 2014 – L 7 AS 1165/14 B ER – legally binding
Bulgarian nationals – no grounds for an eviction order without a court order – language skills
Guiding Principles (Author)
The Senate adheres to the previous case law of all specialist senates of the LSG NRW, that the required urgency only exists in the case of an actual threat to the accommodation, which is regularly to be assumed at the earliest from the service of an eviction action.
The need for a deviation in this individual case is not apparent. The Senate leaves open the question of whether the individual abilities of the person concerned are relevant or even relevant. In any case, a preliminary review reveals no lack of language skills in the applicant.
Source: socialcourtsability.de
Note:
Regarding deviations in individual cases, see LSG NRW, decision of 06.03.2014 – L 6 AS 141/14 B ER – concerning the granting of accommodation costs to a Bulgarian applicant through preliminary legal protection in the absence of a tenancy agreement.
2.4 – Thuringian State Social Court, decision of 02.04.2014 – L 4 AS 50/14 NZB – legally binding
Principle (Author)
: Legal aid is not granted because the question of whether a specific guideline or administrative regulation of a municipal authority, which establishes limits of reasonableness within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), meets the legal requirements and those defined by the Federal Social Court depends on the circumstances of the individual case (see Saxony State Social Court, decision of December 18, 2013 – L 3 AS 1613/13 NZB; see also North Rhine-Westphalia State Social Court, decision of September 10, 2013 – L 19 AS 1304/13 NZB).
Source: sozialgerichtsbarkeit.de
2.5 – Thuringian State Social Court, decision of 24 March 2014 – L 4 AS 146/14 NZB – legally binding
Guiding principle (author)
: No granting of legal aid, because the question of under what conditions a move is necessary within the meaning of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), is not a legal question requiring clarification in this case.
Insofar as the indeterminate legal concept of necessity in Section 22 Paragraph 1 Sentence 2 requires further clarification of its abstract meaning, this has already been sufficiently addressed by the jurisprudence of the Federal Social Court (BSG). According to this jurisprudence, a move is necessary if it is required because the current residence can no longer meet the requirements of the minimum standard of living guaranteed by human dignity under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 GG, particularly for health reasons. This also includes cases in which the move appears necessary for other reasons, even if it is not absolutely essential. The standard for this is whether there is a plausible, comprehensible, and understandable reason that would also motivate someone not receiving social assistance (BSG, Judgment of November 24, 2011 – B 14 AS 107/10 R).
Furthermore, the question of whether recognizable reasons for relocation are to be considered sufficient depends solely on the assessment of the individual case, from which no generalizable legal principle can be derived.
Source: sozialgerichtsbarkeit.de
2.6 – Bavarian State Social Court, decision of 21 July 2014 – L 7 AS 587/13 NZB
The fact that travel expenses for a scheduled appointment are generally to be covered from the standard allowance is already established by the legal provisions of Section 59 of the German Social Code, Book II (SGB II), in conjunction with Section 309 Paragraph 4 of the German Social Code, Book III (SGB III), according to which necessary travel expenses for a scheduled appointment can be reimbursed upon application. Such a provision would otherwise be superfluous (see Bavarian State Social Court judgment of March 27, 2012, Case No.: L 11 AS 774/10).
Guiding Principles (Author):
This is a discretionary decision by the job center, which must consider to what extent a person required to report can cover the costs of the appointment from their standard allowance or whether, at its discretion, travel expenses should be reimbursed in addition. If a person required to report is indigent and therefore unable to attend the appointment, the job center's discretion is reduced to zero, and the travel expenses must be reimbursed or, if necessary, provided in advance.
The legal question raised, namely whether and when travel expenses for an indigent person subject to mandatory reporting must be reimbursed, has already been fully resolved by the decision of the Bavarian State Social Court (Bay.LSG) and no longer requires clarification.
Insofar as the applicant's argument can be interpreted as requiring clarification as to whether indigence to travel to a reporting appointment constitutes a valid reason for failing to appear, this legal question also does not require clarification.
Financial circumstances, particularly a lack of funds to pre-finance travel expenses, can constitute a valid reason for failing to appear. The valid reason for failing to appear, as defined in Section 32 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), must be presented and proven. However, the applicant has not done so as required, but rather only asserted such a reason for the first time during the appeal proceedings.
It has also been clarified by a higher court that a significant reason for lack of financial means to attend a scheduled appointment must be presented in good time before the appointment and not only after it has passed, so that the job center can still react to it (Bavarian State Social Court judgment of September 23, 2005, case no.: L 8 AL 4/05).
Source: sozialgerichtsbarkeit.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Potsdam Social Court, Judgment of 09.04.2014 – S 40 AS 1288/11
The refusal notice was unlawful because the job center did not request the applicant to cooperate accordingly and consequently did not provide him with the legal consequences information and deadline required under Section 66 Paragraph 3 of the German Social Code, Book I.
Guiding Principles (Author)
Regardless of whether the applicant could have obtained the requested information and documents, which were essentially attributable to his wife's business operations (cf. Federal Social Court, decision of February 25, 2013 – B 14 AS 133/12 B; Higher Social Court Berlin-Brandenburg, judgment of April 26, 2012 – L 18 AS 2167/11 –; Higher Social Court of Hesse, decision of June 21, 2013 – L 9 AS 103/13 B ER –), the job center cannot sanction a violation of any cooperation obligations of the applicant by means of a refusal decision within the meaning of Section 66 Paragraphs 1 and 3 of the German Social Code, Book I.
No provision attributable to the applicant is apparent that could be attributed to the applicant in this context, even if the applicant's wife had any misconduct in this matter. In particular, Sections 60 et seq. of the German Social Code, Book I (SGB I), especially Section 66 SGB I, refer to specific misconduct by a benefit recipient (see also Bavarian State Social Court, decision of February 14, 2012 – L 11 AS 142/10). Section 9 Paragraph 2 of the German Social Code, Book II (SGB II) contains only provisions regarding the attribution of a partner's income and assets, but not regarding their fault. This is likewise not covered by Section 38 SGB II, which merely refers to the presumption of authority regarding the receipt and application for benefits.
Source: sozialgerichtsbarkeit.de
3.2 – Social Court Altenburg, judgment of 05.06.2014 – S 23 AS 3562/12 – legally binding – The appeal was admissible.
Regarding the question of whether the youth initiation fee includes benefits for persons other than those entitled to benefits under Section 28 of the German Social Code, Book II (SGB II), justifying a reduction in the reimbursement amount.
Guiding principle (author):
If the job center approves participation in the youth initiation ceremony as a need according to § 28 para. 7 no. 2 SGB II, and this participation necessarily requires payment of the total fee, the person in need must also be reimbursed for this total fee.
While the fee for the youth initiation ceremony is not explicitly listed as one of the needs mentioned in paragraph 7, numbers 1-3, it should be noted that the benefits listed in Section 28, paragraph 7 of the German Social Code, Book II (SGB II), although representing an exhaustive list of participation opportunities, are conceptually broad and open, allowing for considerable flexibility in including a wide range of activities. However, only institutionally organized forms of participation are supported, not individual activities with family, such as a joint visit to the zoo, the outdoor swimming pool, or a museum.
The secular coming-of-age ceremony can be considered a "comparable guided activity of cultural education" within the meaning of section 2. This includes, for example, courses offered by adult education centers, museum education programs, or guided activities to strengthen media literacy (see the explanatory memorandum to the law, BT-Ds. 17/3404, p. 106). This does not include, for example, film screenings, as they have limited potential for integration into social community structures and primarily serve entertainment purposes. The aim is to promote shared experiences or the goals of joint cultural participation.
Source: sozialgerichtsbarkeit.de
3.3 – Social Court Leipzig, judgment of 13 May 2014 – S 17 AS 4284/13
Obligation to apply for early retirement only from the age of 63 – transfer of the right to apply to the basic income support provider – exercise of discretion – purpose of discretion – consideration of hardship aspects
Principle (beck-online):
The purpose of the discretion granted in Section 5 Paragraph 3 of the German Social Code, Book II (SGB II) is not to allow the basic income support providers to weigh up the typical consequences of the exclusion of benefits for old-age pensioners pursuant to Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II).
4. Decisions of the State Social Courts on Social Assistance (SGB X II)
4.1 – North Rhine-Westphalia State Social Court, decision of 04.08.2014 – L 9 SO 279/14 B ER – legally
binding. The applicant, a student with a full reduction in earning capacity, has not credibly demonstrated a claim for basic income support in old age and in the event of reduced earning capacity as a loan.
Guiding Principles (Author)
: It is highly probable that the applicant, although she has reached the age of 18, is fully incapacitated for work within the meaning of Section 43 Paragraph 2 of the German Social Code, Book Six – Statutory Pension Insurance – (SGB VI), regardless of the respective labor market situation, and it is unlikely that the full incapacity for work can be remedied (cf. Section 41 Paragraph 3 SGB XII), has no entitlement to benefits under Chapter Four of the SGB XII, because this is precluded by the exclusion clause of Section 22 Paragraph 1 Sentence 1 SGB XII and there is no special hardship case as an exception to the exclusion of benefits under Section 22 Paragraph 1 Sentence 2 SGB XII.
Whether the provision of Section 27 Paragraph 3 of the German Social Code, Book II (SGB II) regarding a subsidy for reasonable accommodation and heating expenses for trainees as defined in Section 7 Paragraph 5 of the SGB II applies analogously to beneficiaries under the German Social Code, Book XII (SGB XII) does not require a decision in these expedited proceedings, because the applicant obviously does not meet the requirements of Section 27 Paragraph 3 of the SGB II, as she neither actually receives educational assistance benefits nor is ineligible for them solely due to consideration of income and assets. In cases where – as here – the personal requirements for benefits under the Federal Training Assistance Act (BAföG) are not met, Section 27 Paragraph 3 of the SGB II does not apply.
Source: socialcourtsability.de
4.2 – North Rhine-Westphalia State Social Court, judgment of 11 June 2014 – L 20 SO 418/11 – The appeal is admitted.
Regarding the assumption of costs for attending a day education center in Lower Saxony since the beginning of the 2010/2011 school year according to the German Social Code, Book XII (SGB XII).
Guiding principles (author):
The qualification of the assumption of schooling costs as "assistance" in the legal sense is not precluded by the fact that the applicant does not seek a measure accompanying schooling, but rather the assumption of the (entire) costs for attending the T-school as such.
Even in the core area of school education, there is exceptional room for integration assistance services if attending a public school (which is therefore free of charge for the social welfare provider) is not possible or reasonable for objective reasons (e.g., due to the distance from the place of residence) or for serious subjective (personal) reasons (cf. BSG, judgment of 22.03.2012 – B 8 SO 30/10 R with reference to BVerwG, judgment of 13.08.1992 – 5 C 70/88, and decision of 02.09.2003 – 5 B 259/02).
Section 54 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), in conjunction with Section 12 Number 2 of the Integration Assistance Ordinance (EinglhVO) and taking into additional consideration the principle of subsidiarity (Section 2 Paragraph 1 SGB XII), implies that not every form of assistance towards the best possible schooling according to the wishes of the disabled person or their legal guardians can be demanded as integration assistance. Rather, the educational support of children is, according to Article 7 Paragraph 1 of the German Basic Law (GG), a task fundamentally assigned solely to the (public) school authorities (Federal Social Court, Judgment of March 22, 2012 – B 8 SO 30/10 R).
The fact that the applicant commenced her schooling at the T-school contrary to the contested decision of the benefit provider and thus created a fait accompli does not preclude the assumption of the costs for attending the T-school from the outset.
Source: socialcourtsability.de
5. 4.8.2014: Many recipients of unemployment benefit II (ALG II) in Freiburg continue to pay part of their housing costs from their standard allowance
Only now have we become aware of a study that proves the proportion of ALG II recipients in Freiburg who pay part of their rent from their standard allowance is very high and is also continuing to rise:
Percentage of households with inadequate housing costs – previous year: 17.97%
Percentage of households with inadequate housing costs: 21.17%
of which:
Households with one person: 30.4%
Households with two people: 33.5%
Households with three people: 40.6%
Households with four people: 34.2%
Households with five or more people: 17.6% [Source]
It is a scandal that the standard benefit rate, or standard allowance, continues to be reduced far below the socio-cultural subsistence level, even in the tenth year of "Hartz IV," through "rent ceilings" that disregard the housing market situation. Therefore, it is crucial that the Federal Constitutional Court, four years after the ruling on the standard benefit rate on February 9, 2010, is now addressing the question of the limits of reasonable housing costs. (rr)
Source: www.socialrecht-in-freiburg.de
6. Duisburg Job Center Must Provide Lawyer with Phone List.
To avoid constantly being connected to the Duisburg Job Center's switchboard, Duisburg lawyer Dr. Wolfgang Conradis requested an up-to-date phone list from the Job Center. However, the Job Center refused to provide it. Therefore, the lawyer filed a lawsuit in the Administrative Court. He won.
Duisburg job center must provide lawyer's phone list | WAZ.de – Read more at: www.derwesten.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
