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 38/13 R
Basic income support for job seekers – obligation of third parties to provide information – request for information by the basic income support provider from the former employer of the benefit recipient – no right to reimbursement of costs for the employer
Guiding principles (author)
: Employers must provide job centers with information free of charge.
Constitutional law does not preclude this. The exclusion of reimbursement for employer information is compatible with both Article 12 Paragraph 1 of the Basic Law and – in comparison with 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.bundessocialgericht.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, decision of 14 July 2014 – L 7 AS 517/14 B ER
Relocation costs and assurance pursuant to Section 22 of the German Social Code, Book II (SGB II) in preliminary legal protection
Guiding principles (Juris):
In preliminary legal protection proceedings, a claim for an order to pay relocation costs pursuant to Section 22 Paragraph 6 of the German Social Code, Book II (SGB II) can only be granted if either
a typical case and the conditions according to § 22 para. 6 sentence 2 SGB II are met or
the conditions according to § 22 para. 6 sentence 1 SGB II are met and the discretion in favor of the applicants is reduced to zero.
In preliminary legal proceedings, only a provisional assurance can usually be obtained, from which only provisional benefits (here, the rent for the new apartment) can subsequently be claimed. A final clarification of the claim is reserved for the main proceedings.
Source: socialcourtsability.de
2.2 – Bavarian State Social Court, decision of 30 July 2014 – L 11 AS 491/14 B ER
Due to preliminary injunction, start-up capital, business start-up loans
Guiding principles (Juris):
No entitlement to start-up capital and start-up loans within the framework of preliminary legal protection if insufficient documentation is available to examine the viability of the self-employed activity.
Source: socialcourtsability.de
2.3 – Bavarian State Social Court, Judgment of 18 June 2014 – L 16 AS 297/13
Isolated appeal, knowledge of the legal consequences, instruction on legal consequences, sanction notice
Guiding principles (Juris):
According to the new regulations in force since 01.04.2011 pursuant to §§ 31 ff. SGB II, a sanction notice can be challenged separately.
Even in cases where a specific instruction on legal consequences could not be given because a particular employment relationship was concealed, the legal requirement of instruction on legal consequences or knowledge of the legal consequences cannot be waived.
Source: socialcourtsability.de
Note:
For a different view, see Social Court Dortmund, decision of June 13, 2014 – S 32 AS 1173/14 ER and Hessian State Social Court, decision of December 3, 2013 – L 9 AS 614/13 B ER – Even under the current legal situation in force since April 1, 2011, a sanction cannot be an isolated subject of dispute; Bavarian State Social Court, judgment of January 30, 2014 – L 7 AS 85/13 – (appeal allowed).
2.4 – Bavarian State Social Court, Judgment of 16 July 2014 – L 16 AS 518/13
Predictable, consecutive inpatient stays must be aggregated and lead to exclusion from benefits according to § 7 para. 4 SGB II – Hospital treatment and medical rehabilitation measures – Prognosis
Guiding principles (Juris):
If, during the period of benefit receipt, admission to a hospital or rehabilitation facility pursuant to Section 107 of the German Social Code, Book V (SGB V) takes place, the date of admission to the hospital is decisive for the examination of the question of whether an exclusion from benefits pursuant to Section 7 Paragraph 4 Sentences 1 and 3 of the German Social Code, Book II (SGB II) exists.
In the subsequent prognosis decision, all circumstances up to the conclusion of the objection procedure must be taken into account.
In the case of consecutive stays in a hospital pursuant to Section 107 Paragraph 1 of the German Social Code, Book V (SGB V) and in a preventive care or rehabilitation facility pursuant to Section 107 Paragraph 2 of the German Social Code, Book V (SGB V), which are fixed in advance, both stays must be added together for the purpose of examining the expected duration of stay.
Source: socialcourtsability.de
Note:
LSG NRW, judgment of 03.12.2007 – L 20 AS 2/07, holds a different view – combining two consecutive inpatient stays is only possible if both treatments are coordinated or attributable to one and the same medical event.
2.5 – State Social Court of Saxony-Anhalt, Decision of 25.07.2014 – L 4 AS 233/14 B ER – legally binding. Key
principles (author):
The job center does not have to provide costs for accommodation and heating, because the applicant has not credibly demonstrated that he is legally obligated to make rent payments that would be considered as housing costs.
Source: socialcourtsability.de
2.6 – Baden-Württemberg State Social Court, decision of 23 January 2014 – L 9 AS 5473/13 B
Principles (Author):
Appeals against the revocation of legal aid are not covered by the wording of Section 172 Paragraph 3 No. 2 of the Social Court Act (SGG), even after the new regulations of 25 October 2013.
Source: socialcourtsability.de
2.7 – North Rhine-Westphalia State Social Court, decision of 12.08.2014 – L 2 AS 2095/13 B – legally binding.
An objection is admissible against the order to apply for priority benefits.
Guiding Principles (Author):
The request pursuant to Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is not to be classified as purely preparatory administrative action. Rather, it is an order issued by an authority to regulate an individual case with external effect and is therefore an administrative act within the meaning of Section 31 of the German Social Code, Book X (SGB X).
An objection may be lodged against the order for payment (see BSG, decision of 16.12.2011, B 14 AS 138/11 R, on § 12 a SGB II).
Source: socialcourtsability.de
Note:
See also Social Court Cottbus, judgment of 15 May 2014 – S 14 AS 4304/13
2.8 – North Rhine-Westphalia State Social Court, decision of 08.08.2014 – L 6 AS 726/14 B – legally
binding. Granting of legal aid for proceedings in which the plaintiffs – the single mother and her 3 minor children – challenge the unconstitutionality of the standard benefit rate under the German Social Code, Book II (SGB II) for multi-person households with children.
Guiding Principles (Author):
A possible victory, taking into account the plaintiffs' argument that the standard benefit rates for multi-person households were set at an unconstitutional level, cannot be ruled out. This is because this is a legal question that has not yet been clarified.
The legal regulations concerning standard benefit rates, which have been in effect since 2011, and thus the constitutionality of the minimum subsistence level available to households receiving benefits – particularly those with minor children – are being reviewed by the Federal Constitutional Court (BVerfG) in constitutional complaint proceedings 1 BvR 1691/13 against the judgment of the Federal Social Court (BSG) of March 28, 2013 – B 4 AS 12/12 R. The Federal Constitutional Court granted the plaintiffs in those proceedings legal aid for the constitutional complaint by decision of September 10, 2013. Ultimately, the (renewed) decision of the Federal Constitutional Court can clarify the constitutionality of the standard benefit rate regulations for this constellation of multi-member households receiving benefits. The Federal Constitutional Court will have to decide whether the legislature has designed the legal regulations of the German Social Code, Book II (SGB II), in a manner compatible with the constitution, even for multi-member households receiving benefits.
Source: socialcourtsability.de
2.9 – North Rhine-Westphalia State Social Court, decision of 09.07.2014 – L 7 AS 476/14 B ER – legally binding.
In the context of the balancing of interests, the applicant is to be provisionally granted basic income support for job seekers with regard to the standard needs – No tolerance of a home visit.
Guiding principles (author):
The applicant's sworn statement speaks in favor of the need for assistance and against a community of support and responsibility.
The sublease agreement and the mutual obligations do not support the conclusion of a mutual cohabitation arrangement. The applicant is obligated to maintain the furniture in all rooms.
There is no obligation to allow a home visit as part of the process of determining whether a partnership exists. Therefore, the refusal to allow a home visit should not be overemphasized in the evaluation of evidence. If a third party refuses to provide information, the authority may question them as a witness (Section 21 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book X) and, if necessary, request the Social Court to conduct a corresponding examination, including under oath (Section 22 of the German Social Code, Book X). According to a preliminary review, this has not occurred in this form.
Source: socialcourtsability.de
Note:
For further reading, see the article by attorney Thorsten Haßiepen: Hartz IV and home visits by the job center: rechtsanwalthassiepen.wordpress.com
2.10 – North Rhine-Westphalia State Social Court, decision of 11.07.2014 – L 7 AS 1035/14 B ER – legally
binding. Provisional granting of ALG II for Dutch nationals within the framework of the balancing of interests.
Guiding Principles (Author):
Furthermore, the opinion of Advocate General Wathelet of 20 May 2014 in the preliminary ruling proceedings before the Social Court of Leipzig (ECJ – C-333/13 – Case Dano) does not preclude the granting of benefits within the framework of the balancing of interests. The Advocate General's legal opinion is not binding on the ECJ.
Source: socialcourtsability.de
2.11 – North Rhine-Westphalia State Social Court, decision of 06.08.2014 – L 19 AS 984/14 B ER – and – L 19 AS 985/14 B – legally binding.
Polish national is entitled to ALG II (unemployment benefit II) – even in expedited proceedings, the court has a duty to investigate ex officio (§ 103 SGG; see also Schleswig-Holstein State Social Court decision of 18.11.2011 – L 5 KR 202/11 B) – gifts from the aunt – benefits to substitute withheld SGB II benefits, which may not be counted as reducing the need for assistance.
Guiding Principles (Author):
If it is assumed that the sole right of residence is for the purpose of seeking employment within the meaning of Section 2 Paragraph 2 No. 1 of the Freedom of Movement Act/EU, it is questionable, in view of the unclear compatibility of the provision of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) with European Community law, whether the exclusion from benefits applies. While it is true that, in principle, even in preliminary legal protection proceedings, a decision must be made based on a conclusive examination of the facts and the law. However, if this is not possible, according to general opinion, unanimous case law of the Senates of the Higher Social Court of North Rhine-Westphalia responsible for the benefit law of the German Social Code, Book II (SGB II) (see, for example, the Senate's decisions of March 10, 2014 – L 19 AS 2336/13 B ER, of February 18, 2014 – L 19 AS 139/14 B ER and of June 29, 2012 – L 19 AS 973/12 B ER; Higher Social Court of North Rhine-Westphalia decision of April 17, 2014 – L 6 AS 239/14 B ER) and the case law of the Federal Constitutional Court (e.g., Federal Constitutional Court decisions of May 12, 2005 – B 1 BvR 569/05 and February 6, 2013 – 1 BvR 2366/12), a decision must be made by way of a balancing of interests. will be, in which in particular the applicant's fundamental rights interests must be taken into account.
In addition, the assessment took into account that the job center can protect its financial interests by registering 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: socialcourtsability.de
Note:
Same opinion for Bulgarian nationals – LSG NRW, decision of 28.07.2014 – L 19 AS 948/14 B ER –
3. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – Social Court Hamburg, Decision of 11 August 2014 – S 35 AS 2710/14 ER
If the integration agreement is still valid, it cannot be unilaterally replaced by an administrative act.
Guiding Principles (Author)
Judicial review of an integration agreement
is based on the regulations pursuant to Sections 53 et seq. of the German Social Code, Book X (SGB X), because the integration agreement pursuant to Section 15 of the German Social Code, Book II (SGB II) is a subordinate public-law contract pursuant to Section 53 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X) (cf. Federal Social Court (BSG), Judgment of December 6, 2012 – B 11 AL 15/11 R).
However, the mere fact that the basic income support provider, according to the assessment of the German Social Code, Book II (SGB II), has a current need for support, without any further changes in circumstances since the conclusion of the integration agreement, e.g., in the applicant's personal situation, does not justify an amendment or termination of the contract. Nor is there a need to prevent or eliminate serious disadvantages for the common good that would otherwise justify termination (§ 59 para. 1 sentence 2 SGB X).
If the integration agreement is still valid, it cannot be unilaterally replaced by an administrative act. This is already precluded by the wording of Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) (prevailing opinion, cf. Higher Social Court of Saxony-Anhalt, Decision of March 21, 2012, – L 5 AS 509/11 B ER; Higher Social Court of Brandenburg, Decision of January 12, 2012 – L 5 AS 2097/11 B ER; Higher Social Court of Baden-Württemberg, Decision of August 2, 2011 – L 7 AS 2367/11 ER-B; Bavarian Higher Social Court, Decision of May 25, 2010 – L 11 AS 294/10 B ER; Müller in: Hauck/Noftz, SGB II, Section 15, marginal note 17; Sonnhoff in: jurisPK-SGB II, 3rd edition 2012, Section 15, marginal note 129; Berlit (in: Münder, SGB II, 5th ed. 2013, § 15 para. 42).
The decision is available to the author.
Note:
Social Court Munich, decision of May 19, 2014 – S 54 AS 1155/14 ER (unpublished); Social Court Mannheim, decision of June 27, 2013 – S 6 AS 1847/13 ER (unpublished); Social Court Dortmund, proceedings (note by the court) of... 15.05.2012 – S 62 AS 645/11 – and – S 62 AS 1261/11 (unpublished): The wording of Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) already precludes the basic income support provider under the SGB II from unilaterally replacing an already concluded and still valid integration agreement by an administrative act pursuant to Section 15 Paragraph 1 Sentence 6 of the SGB II.
3.2 – SG Oldenburg, decision of 01.07.2014 – S 45 AS 202/14 ER
Replacement of the integration agreement by administrative act – The administrative act replacing the agreement must, in principle, have the same content as the integration agreement that did not come into existence.
Guiding principles (author):
Only an integration agreement that has been previously negotiated with the beneficiary can be validly replaced by an administrative act.
Issuing an administrative act replacing an integration agreement with content that deviates from the negotiated integration agreement is unlawful, because the purpose of the integration decision pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) is precisely to provide the administration with an instrument by which it can determine measures deemed necessary for the integration of benefit recipients, if necessary in the event of failure of integration efforts, even without their consent (cf. Higher Social Court of Lower Saxony, Decision of August 1, 2013 – L 13 AS 192/13 B ER, not published).
The decision is available to the author.
Note:
SG Stuttgart held the same view, decision of 21.5.2014, S 18 AS 2698/14 ER.
3.3 – SG Gelsenkirchen, decision of 18.06.2013 – S 43 AS 1316/13 ER
Guiding Principles Dr. Manfred Hammel:
If a JobCenter, in an integration administrative act (§ 15 para. 1 sentence 6 SGB II), obliges a recipient of unemployment benefit II (Alg II) to submit and provide proof of at least six job applications per month, but the SGB II provider simultaneously reserves the right to make a discretionary decision regarding the final reimbursement of application costs, this restriction renders the order unlawful.
A recipient of unemployment benefit II (ALG II) cannot be expected to cover special additional expenses incurred as mandated by the authorities to implement their integration efforts from their standard allowance for securing their livelihood under Section 20 of the German Social Code, Book II (SGB II). The reimbursement of application costs by the SGB II agency is an essential prerequisite for the ALG II recipient to apply for jobs.
If an integration administrative act stipulates that a violation of reporting requirements issued by the Job Center will always result in a first-stage sanction in the form of a 30% reduction of the approved standard benefit, this constitutes an unlawful circumvention of the sanction provision arising from Section 32 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II): In the case of failure to report, a significantly lower reduction of the standard benefit, namely 10%, is stipulated there.
4. Decisions of the State Social Court on employment promotion law according to the (SGB III)
4.1 – Saxon State Social Court, Judgment of 19 June 2014 – L 3 AL 17/14
Unemployed individuals can apply for reimbursement of car repair costs from the placement budget in order to initiate or take up employment subject to social security contributions. The term "initiation," which is also found in Section 159 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book III (SGB III), is not legally defined.
Guiding principles (author):
The legal basis for the assumption of repair costs can be found in § 44 SGB III.
The applicant's car is now over 16.5 years old and has a mileage of over 200,000 km. Subsidies for a "bottomless pit" are neither required nor permitted.
Source: sozialgerichtsbarkeit.de
Note:
See Saxon State Social Court, decision of 27 January 2014 – L 7 AS 1807/13 B ER – On the provisional approval of benefits for the acquisition of a used motor vehicle from the placement budget.
5. Decisions of the social courts on social assistance (SGB X II)
5.1 – Social Court Hannover, decision of 31 July 2014 – S 4 SO 255/14 ER
Guiding Principles by Attorney Michael Loewy:
Securing accommodation under Section 36 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) does not require imminent homelessness. The discretion to grant a loan pursuant to Section 36 Paragraph 1 Sentence 1 of the SGB XII is reduced to zero if an applicant with severe dementia is threatened with the loss of their familiar nursing home placement and the associated move to an unfamiliar nursing home is likely to cause health problems. [not legally binding]
Source: anwaltskanzlei-loewy.de
5.2 – Social Court Karlsruhe, Judgment of July 24, 2014 – S 4 SO 1672/13
Claim for reimbursement by the initially contacted agency upon admission to a homeless shelter against the locally responsible agency of the homeless person's last habitual residence.
Principle: For the reimbursement obligation under Section 98 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII), interim stays abroad are not relevant. (Official principle – beck-online).
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
