1. Decisions of the Federal Social Court of June 4, 2014 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of June 4, 2014 – B 14 AS 53/13
Social court proceedings - regulatory review proceedings - decision on the validity of statutes according to § 22a SGB 2 - ineffectiveness of the Berlin Housing Expenses Ordinance - WAufwV BE - formation of an overall appropriateness limit for accommodation and heating costs - inadmissibility of determining the heating requirement based on the right column "too high" of the nationwide heating level
Guiding principles (author)
The WAV of the State of Berlin dated April 3, 2012 is overall ineffective.
The use of the values of the nationwide heating level is not suitable for adequately justifying an overall adequacy limit because it is only a limit value (BSG dated May 12, 2013 - B 14 AS 60/12 R). Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of May 14, 2014 on employment promotion (SGB III)
2.1 - BSG, judgment of May 14, 2014 - B 11 AL 8/13 R
Failure to report three times does not ipso jure justify that the unemployed person is no longer available.
Guiding principles (author)
Even a repeated violation of the general reporting obligation does not entitle the Federal Employment Agency to cancel the payment of unemployment benefit due to the unavailability of the unemployed person without further individual assessment.
The law does not provide for such an automatism. However, the failure of an unemployed person to appear after a request to report has been made can be a significant indication of a lack of availability and a violation of the unemployed person's obligations to provide facts and appear in person in accordance with the cooperation regulations that apply to all social benefits and can be a reason for benefit denial or withdrawal. §§ 61, 66 SGB I are applicable in addition to the reporting requirement according to § 309 SGB III. However, the State Social Court denied this here without violating the outer limits of the assessment of evidence.
Source: juris.bundessocialgericht.de
3. Decisions of the state social courts on basic security for job seekers (SGB II)
3.1 - LSG NRW, decision of August 8, 2014 - L 6 AS 727/14 B
For legal aid approval in a procedure involving the offsetting of a rental deposit loan.
Guiding principles (author)
The immediate repayment of a loan by way of offsetting in the amount of 10%, which is mandatory in Section 42a Paragraph 2 SGB II. H. the standard benefit with an expected duration of more than three years does not seem to be constitutionally harmless (cf. Senate judgment of January 30, 2014 - L 6 AS 1154/13-).
The benefit recipient only has resources in the amount of the standard requirement, which is intended to cover the socio-cultural subsistence minimum.
These are means/entitlements that aim to ensure a humane life on the basis of the state's constitutional obligation to secure existence (cf. Federal Constitutional Court - BverfG decision before May 12, 2005-1 BvR 596/05; see also LSG Saxony-Anhalt decision of 01.11.2013-L 2 AS 841/13 B ER).
In principle, any reduction in these funds represents a significant intervention (see also Senate resolution of March 31, 2011-L 6 B 86/09 AS). This also applies to monthly ten percent offsetting in accordance with Section 42a SGB II. Source: www.lokalkompass.de
Note 1:
See LSG BB, decision of November 18, 2013 - L 10 AS 1793/13 B PKH - Granting of legal aid, because it seems constitutionally questionable if the repayment of the rental deposit will take more than two years, so this could be considered an atypical case. The ongoing reduction in the benefit to cover the standard requirements due to such expenses undermines the possibility required by the BVerfG to make savings in relation to the standard requirements and thus achieve compensation.
Note 2:
See LSG NRW, decision of March 27, 2014 - L 19 AS 332/14 B - Granting of PKH, the constitutional concerns raised against the regulation of Section 42a Paragraph 2 SGB II (see LSG Berlin-Brandenburg decision of November 18, 2013 - L 10 AS 1793/13 B; LSG North Rhine-Westphalia Decision of February 7, 2013 - L 7 AS 448/13 B with further details) it is countered that in atypical cases a rental deposit must be granted as a subsidy (LSG North Rhine-Westphalia Resolution of February 3, 2014 - L 2 AS 2280/13 B or a waiver of the repayment obligation according to Section 44 SGB II is possible. When examining whether an atypical case exists, the legal provisions in force since April 1, 2011 are taken into account Since then, different aspects have played a role in repayment conditions than before.
3.2 - State Social Court of North Rhine-Westphalia, decision of July 24, 2014 - L 19 AS 423/14 NZB - legally binding
principles (author)
The fundamental question of the extent to which repayments on liabilities for the purchase of a home are to be taken into account as a requirement is in the case law of the BSG clarified. According to the established case law of the BSG (judgments of November 7th, 2006 - B 7b AS 2/05 R -, February 18th, 2010 - B 14 AS 74/08 R, July 7th, 2011 - B 14 AS 79/10 R, August 23rd, 2011 - B 14 AS 91/10 R, February 16, 2012 - B 4 AS 14/11 R and August 22, 2012 - B 14 AS 1/12 R), repayment payments are only to be made in the special exceptional case when it comes to maintaining residential property , the financing of which has already been largely completed by the time basic social security benefits are received.
The legal question of whether and under what conditions repayment payments that the original owner must continue to bear after the free transfer of property and the granting of a right of usufruct based on the transfer agreement concerns an individual case and a case constellation that is not relevant to the decision in a significant number of cases.
There is also no evidence of a continued effect for other reasons. Apart from that, it can be answered with the existing case law of the BSG. The case law of the BSG regarding the assumption of repayment payments also applies to the case here. Source: socialcourtsability.de
3.3 - State Social Court of North Rhine-Westphalia, decision of August 14, 2014 - L 2 AS 1229/14 B ER - legally
binding The provisional granting of the applicant's share of benefits for accommodation and heating constitutes a concrete threat of homelessness, which usually only occurs after delivery of the Eviction proceedings must be accepted in advance (see decision of the adjudicating Senate of July 8, 2013 - L 2 AS 1116/13 B ER).
Guiding principles (author)
Whether the applicant is entitled to housing benefit to finance her share of accommodation costs is irrelevant against this background, since in any case the reason for the order required for the issuance of an interim order does not exist.
A different assessment does not result from the decision of the LSG NRW of April 17, 2014 - L 19 AS 485/14 B ER.
In this resolution, the 19th Senate expressly stated that only in the case of a jurisdictional dispute covered by Section 44a SGB II are lower requirements to be placed on the reason for the order for the provisional granting of accommodation costs, because in this case it is not in question whether at all a claim to benefits exists. The rejection of housing benefit, which is to be claimed as a priority in accordance with Section 12a Sentence 1 SGB II, is not comparable with this because this does not automatically result in a claim to SGB II benefits. Source: socialcourtsabilty.de
3.4 - Lower Saxony-Bremen State Social Court 15th Senate, decision of July 24, 2014 - L 15 AS 202/14 B ER
Social court procedure - interim legal protection - basic security for job seekers - exclusion of benefits for foreigners when staying to look for work - applicability to Union citizens – Employee status?- Credibility of the actual performance of an activity?
- subordinate and non-essential activity? - European Social Charter Guidelines (Juris)
The Senate sticks to its opinion (see already resolution of November 15, 2013 - L 15 AS 365/13 B ER = ZFSH/SGB 2014, 177) that § 7 para 1 S 2 No. 2 SGB 2 always excludes benefits according to SGB 2 if no other purpose of residence than that of looking for a job can justify a right of residence, so that foreigners who have no material right of residence in the federal territory are also excluded from benefits according to SGB 2 , because they are economically inactive without having sufficient health insurance coverage and sufficient means of subsistence or a right of permanent residence (Section 2 Paragraph 2 Numbers 5 and 7 in conjunction with Section 4 S 1 and Section 4a FreizügG/EU).
A claim to benefits under SGB II does not follow from Article 13 of the European Social Charter (ESC). The rights from the ESC are only designed as program regulations and do not create any individual rights. The direct applicability of an international law norm in domestic law does not automatically lead to this norm also establishing a subjective right. Due to the clear contrary regulation in Section 7 Paragraph 1 S 2 No. 2 SGB II, the ESC cannot be used to interpret or fill gaps in the regulations to justify a SGB II entitlement for foreigners whose sole purpose of residence is to look for work.
There is no rigid limit with regard to income or working hours above which employee status must be affirmed (Section 2 Paragraph 2 No. 1 FreizügG/EU).
In this specific case, working as a cleaner with a weekly working time of 2.95 hours on one day a week and earning between EUR 110.88 and EUR 114.79 per month is a completely subordinate and insignificant activity and does not constitute employee status. Source: www.rechtsprachung.niedersachsen.de
3.5 - Saxon State Social Court, decision of August 13, 2014 - L 7 AS 1569/13 NZB
On the question of whether Section 40 Paragraph 1 Sentence 2 SGB II in the version applicable since April 1, 2011, with which the “expiry period” for social benefits to be granted retroactively according to Section 44 Paragraph 4 Sentence 1 SGB X of four years for benefits after SGB II was shortened to one year, is unconstitutional.
Guiding principles (author)
The new regulation of Section 40 Paragraph 1 Sentence 2 SGB II, with which the review period for benefits under SGB II has been shortened to one year, is constitutional.
Source: socialcourtsability.de
Note:
Same opinion BSG, judgment of February 13, 2014 – B 4 AS 19/13 R;
It is not apparent that a state social court would have expressed concerns in this regard (cf. BayLSG, judgment of March 19, 2014 - L 16 AS 289/13; LSG Bad.-Württemberg, decision of October 24, 2013 - L 13 AS 4917/12 B; LSG NRW, judgment of September 19, 2013 - L 7 AS 1050/13; on SGB XII § 116a SGB XII - BSG, judgment of June 26, 2013 - B 7 AY 6/12 R). 4. Decisions of the social courts on basic security for job seekers (SGB II)
4.1 - Berlin Social Court, judgment of July 9, 2014 - S 205 AS 30970/13 - Appeal pending at the LSG Berlin-Brandenburg under the file number L 26 AS 1921/14
Guidelines (author )
The job center may also order a reduction in unemployment benefit II if an obligation stipulated by an administrative integration act is violated. This has been expressly made clear in the law since April 1, 2011.
The reduction of unemployment benefit II according to Section 31 Paragraph 1 Sentence 1 No. 1 SGB II only requires an obligation based on an effective, i.e. announced and not void, administrative integration act. The illegality of the administrative integration act cannot be examined incidentally as part of the sanction.
An objection to a reduction notice does not always include a request for a review of the underlying administrative integration act (but as stated in Berlit, in: LPK-SGB II, 5th ed., § 31 Rn. 19). In principle, such an implied request for review can only be accepted if the person making the objection indicates in the grounds of the objection that he considers the administrative integration act to be unlawful (cf. LSG Baden-Württemberg, judgment of March 23, 2012 - L 12 AS 3569/11 ).
The regulations regarding the reduction of unemployment benefit II in the event of breaches of duty are not unconstitutional (but see Neskovic/Erdem, SGb 2012, 134ff.).
The assumption that a reduction in benefits always represents an unconstitutional interference with the subsistence minimum is based on the erroneous approach that the standard benefit is already essential for subsistence (LSG Niedersachsen-Bremen, judgment of December 18, 2013 - L 13 AS 161 /12) In any case, a reduction of 30 percent of the standard requirement does not raise any constitutional concerns, since the physical minimum subsistence level is not affected, and such a reduction therefore only affects the opportunities for participation in social life, in which the legislature has a wide scope for design (cf. BVerfG; judgment of February 9, 2010 - 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09) and, for example, the inadequate efforts of the beneficiary to be able to finance his living from his own resources may be taken into account. Source: Sozialgerichtsbaren.de
Note:
Different opinion LSG NRW, decision of October 17th, 2013 - L 7 AS 836/13 B -, left open Hessisches LSG, decision of December 3rd, 2013 - L 9 AS 614/13 B ER -: The legal force an administrative act in accordance with Section 15 Paragraph 1 Sentence 6 SGB II does not prevent the material review of the conduct's deserving of sanctions. The objection to the sanction decision also regularly includes an application for a review in accordance with Section 44 SGB X.
4.2 - SG Osnabrück, judgment of July 9, 2014 - S 33 AS 133/13
Guiding principles (author)
Additional payments for social benefits (here: child benefit) are to be distributed over six months in accordance with Section 11 Paragraph 3 SGB II, if necessary in conjunction with Section 11 Paragraph 2 Sentence 3 SGB II (aA BSG, judgment of 16 May 2012, Ref.: B 4 AS 154/11 R; Judgment of May 7, 2009, Ref.: B 14 AS 13/08 R).
Source: www.rechtsprachung.niedersachsen.de
Note:
Different opinion See LSG NRW, decision of May 28, 2014 - L 19 AS 1860/13 B - child benefit paid in arrears is a one-off income.
4.3 - SG Osnabrück, judgment of July 9, 2014 - S 33 AS 199/13
Subsequent payments due to calculation errors according to Section 18 GasGVV do not represent accommodation costs within the meaning of Section 22 Paragraph 1 SGB II, but can be assumed as debts according to Section 22 Paragraph 8 SGB II or Section 36 SGB XII.
Guiding principles (author)
The requirements for accommodation and heating do not include claims for damages due to misuse of the item as well as default interest (LSG Saxony-Anhalt, judgment of December 13, 201, L 5 AS 21/09; LSG Baden-Württemberg, judgment of May 22 2012, Ref.: L 13 AS 3213/11).
What these claims have in common is that they do not constitute consideration for ongoing accommodation, but are intended to correct conditions that violate the contract and restore a legal situation. Source: www.rechtsprachung.niedersachsen.de
courts on social assistance (SGB
The social welfare agency must grant the applicant a grant of up to EUR 9,000.00 to purchase a motor vehicle suitable for disabled people or a motor vehicle that can be converted to suit disabled people.
Guiding principles (author)
The requirements for integration assistance according to Sections 53, 54, Paragraph 1 SGB XII in conjunction with Section 55 SGB IX and Section 8 EinglHV are met. According to recent case law of the BSG, an intensity of use comparable to the use of a car for participation in working life is not required (judgment of February 2, 2012 - B 8 SO 9/10 R).
Converting a vehicle that already belongs to the applicant's “foster family” cannot be considered as an alternative to purchasing one's own car (on this point, see BSG, judgment of December 12, 2013 - B 8 SO 18/12 R).
A claim to benefits from the applicant.
does not conflict with Section 8 Paragraph 3 EinglHV. According to this, the assistance according to paragraph 1 of the regulation is generally dependent on the disabled person being able to operate the vehicle themselves. If exceptions to the rule are possible, the approval of vehicle assistance may be considered, for example, if disabled children have to be regularly driven to school or to a conference center by their parents due to a lack of other transport options, or if it is ensured that the disabled person can be driven by one A capable and authorized other person can drive the car for the measures aimed at integrating them and this does not result in any additional costs that the disabled person cannot bear themselves. In the case of the applicant, cost-neutral transport appears to be secured by the carer or other people close to her; In addition, their situation is comparable to that of underage children. Source: socialcourtsabilty.de
6. Decisions of the social courts on social assistance (SGB
The obligation to bear the funeral costs can arise from contract, family law, inheritance law or maintenance law. In addition, a public burial obligation under the respective burial law of the responsible federal state also comes into consideration (cf. BSG, judgment of September 29, 2009 - B 8 SO 23/08 R -). In contrast, the moral or moral obligation is not sufficient (cf. judgment of the SG Oldenburg of December 2nd, 2011 - S 21 SO 231/09 -).
Guiding principles (author)
In contrast, the moral or moral obligation that the applicant has assumed in this case is not sufficient.
The application is not responsible for the burial within the meaning of Section 74 SGB XII. Source: www.rechtsprachung.niedersachsen.de
§ 44 SGB
/2014 of the info also: www.info-also.nomos.de (pdf)
8. Note on: OLG Hamm 7th Senate, decision of December 17, 2013 - 7 UF 165/13, author: Heinrich Schürmann, chairman RiOLG
parental support if the income limit for basic security in old age is exceeded
Guidance sentences
Contrary to the narrow interpretation of the wording of the provision of Section 43 Paragraph 3 Sentence 1 and Sentence 6 SGB XII, the income limit of 100,000 euros applies to each individual maintenance debtor.
If a person claimed for parental support were to be required to pay maintenance simply because he had a brother whose income was above the income limit, this would lead to unjustified unequal treatment with an only child who lived in identical economic and personal circumstances as the person claimed , there would be no maintenance obligations because the needy parent would be entitled to basic security benefits.
Section 43, Paragraph 3 of the SGB
However, since high-earning maintenance debtors should not be privileged at the expense of the general public, the income limit of 100,000 euros was introduced. If the beneficiary were forced to make use of children with significantly lower incomes in addition to the wealthy child, the intended purpose of the law would not be achieved. Source Juris: www.juris.de
9. Note on: BSG 14th Senate, judgment of February 20, 2014 - B 14 AS 53/12 R, author: Prof. Dr.
Uwe Berlit, Chairman RiBVerwG No income deduction for payments on arrears of maintenance
Guiding principle
A payment on arrears of established maintenance claims from the past is not to be taken into account as a deduction from income according to SGB II.
Source Juris: www.juris.de
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
