1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – State Social Court of Saxony-Anhalt, Judgment of 27 March 2014 – L 2 AS 877/12
The employment agency (or the joint agency acting on its behalf) may not request the submission of completed forms EK, VM, and WEP (income and asset forms and form for registering additional members of the household aged 15 and over) or proof of income if the existence of a cohabiting partnership is disputed by the partner and they have not applied for benefits under Book II of the German Social Code (SGB II). There is no legal basis for this.
(Guiding principles: Author)
Information requested that is unrelated to the partner's income and assets is not covered.
Therefore, a partner of an applicant for benefits under the German Social Code, Book II (SGB II), living in a shared household and in a community of responsibility and mutual support cannot be required to complete the WEP form.
Section 60 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) does not cover the request for documents.
With respect to a partner who is not applying for benefits themselves, only the provision of information can be demanded, according to the clear wording of Section 60 Paragraph 4 Sentence 1 Number 1 of the German Social Code, Book II (SGB II). Section 60 Paragraph 4 Sentence 1 Number 1 of the SGB II does not, according to the clear wording of the provision, authorize the Employment Agency (or the joint institution acting on its behalf) to demand the submission of documents regarding the amount of income (see Federal Social Court (BSG), Judgment of February 24, 2011 - B 14 AS 87/09 R).
Source: sozialgerichtsbarkeit.de
1.2 – State Social Court of Saxony-Anhalt, decision of 26.03.2014 – L 2 AS 720/13 NZB – legally binding.
Key principles (author):
No annual calculation of income from self-employment if the benefit recipient works as a painter and photographer and operates the business continuously throughout the year.
A temporal discrepancy between investments and associated income exists in every self-employed activity and does not in itself justify the transition to an annual assessment.
Source: socialcourtsability.de
Note:
See Rhineland-Palatinate Higher Social Court, judgment of December 19, 2012 – L 6 AS 611/11 – An annual calculation of income from self-employment pursuant to Section 3 Paragraph 5 of the Second Book of the Social Code (SGB II) can be carried out not only for seasonal businesses, but also for businesses where, due to the nature of the activity, an annual assessment is necessary. This can be the case, considering all the circumstances of the individual case, when income is only received in certain months within a year.
1.3 – State Social Court of Saxony-Anhalt, decision of 20 August 2014 – L 4 AS 273/14 B ER – legally
binding; basic income support for job seekers – consideration of income – gifted holiday trip from parents worth almost 6,000 euros in cash – premature depletion of income – unavailable funds – legal amendment as of 1 April 2011 – transferability of the previous case law of the Federal Social Court to the new law
Guiding Principles (Author):
According to the established case law of the Federal Social Court (BSG), a one-off payment may only be taken into account as reducing the need for benefits over a distribution period if it is suitable as readily available funds to cover the specific needs in the respective month (cf. BSG, judgment of February 20, 2014, B 14 AS 53/12 R).
This case law is not superseded by the new version of the SGB II on 01.04.2011 (different view: LSG Lower Saxony-Bremen, decision of 03.02.2014 – L 15 AS 437/13 B ER).
Source: socialcourtsability.de
Note:
SG Kassel shares the same opinion, judgment of 26.03.2014 – S 6 AS 456/13 –.
1.4 – Saxon State Social Court, decision of 28.08.2014 – L 7 AS 836/14 B ER
The job center's request to apply for early retirement benefits is not unlawful, as there is no evidence of undue hardship in claiming an early retirement pension within the meaning of Sections 1 to 5 of the Hardship Ordinance. The objection to the decision has no suspensive effect pursuant to Section 86a Paragraph 2 No. 4 of the Social Court Act (SGG) in conjunction with Section 39 No. 3 of the Social Code, Book II (SGB II). The job center exercised its discretion correctly.
Guiding Principles (Author):
Even when receiving an old-age pension without deductions, the applicant remains dependent on supplementary benefits under Book XII of the German Social Code (SGB XII). However, claiming the early retirement pension and supplementary benefits under SGB XII reduces the applicant's need for assistance as defined by Book II of the German Social Code (SGB II). Therefore, there is an obligation to apply for priority benefits pursuant to Section 12a, Sentence 1 of SGB II.
It is unnecessary to decide whether the applicant could claim unfairness resulting from the fact that the benefits saved under Section 12a of SGB II would be lower than the projected SGB XII benefits payable instead, because such a situation does not exist in this case.
The request from the Jobcenter can lead to a reduction not only in the need for assistance under the German Social Code Book II (SGB II), but also in the need for assistance under the German Social Code Book II (SGB II) and the German Social Code Book XII (SGB XII).
There are no fundamental constitutional concerns, because even insured persons who are not in need of assistance have to accept the same deductions when claiming their old-age pension early. (cf. Social Court Leipzig, judgment of 13 May 2014 – S 17 AS 4284/13 – not published).
Source: socialcourtsability.de
Note:
See, for the same view, LSG NRW, decision of 13.05.2013
– L 7 AS 525/13 B ER and – L 7 AS 526/13 B – In view of the fact that even the regular old-age pension is insufficient to cover the needs, and consequently the need for assistance under the German Social Code, Book XII (SGB XII) cannot be avoided in this case either, there is no case of unfairness.
1.5 – Berlin-Brandenburg Higher Social Court, decision of August 25, 2014 – L 14 AS 3107/13 NZB
On the definiteness of a revocation and reimbursement order (following the Federal Social Court decision of November 29, 2012 – B 14 AS 196/11 R).
Source: sozialgerichtsbarkeit.de
1.6 – Hamburg State Social Court, Judgment of 21 August 2014 – L 4 AS 97/13
The claims and income of the benefit recipient from the settlement agreement concluded with the brother (agreement to waive inheritance and compulsory share) are not protected assets, but – adjusted for the lump sum according to § 6 Alg-II-V – are fully taken into account as income according to § 11 para. 1 sentence 1 SGB II.
Guiding Principles (Author)
: Income is generally what someone receives in terms of value during the period of need, and assets are what they already possess during the period of need. The actual inflow is the determining factor, unless a different inflow is legally stipulated (normative inflow).
Accordingly, severance payments received after the application is filed are to be considered income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), and not assets (Federal Social Court, Judgment of October 28, 2009, B 14 AS 64/08 R). A different date of receipt is not stipulated by law. In this respect, only Section 1922 Paragraph 1 of the German Civil Code (BGB) would be relevant (universal succession of the heir at the time of the testator's death). However, this provision is not applicable here, even by analogy.
Source: sozialgerichtsbarkeit.de
Note:
See LSG Hessen, judgment of 29.10.2012 – L 9 AS 357/10 – regarding consideration as assets in the case of inheritance before application – no different assessment in the case of asset restructuring through sale of the asset.
1.7 – LSG NSB, decision of 28.03.2013 – L 25 AS 62/13 B ER
No limit on tutoring subsidies
Guiding Principles (Author):
Social security agencies under the German Social Code, Book II (SGB II), may not refuse to finance necessary tutoring for children from families receiving Hartz IV benefits simply because they have already received support for up to seven months. The law does not specify a time limit for when temporary learning difficulties must be resolved.
Source: sozialgerichtsbarkeit.de
Note:
See Social Court Dortmund, judgment of December 20, 2013 – S 19 AS 1036/12 – No time limit for tutoring. Benefits for education and participation in the form of the reimbursement of tutoring costs are not limited to a duration of two months.
1.8 – Lower Saxony-Bremen State Social Court, Judgment of 11 June 2014 – L 13 AS 143/11 – Appeal pending under B 14 AS 31/14 R.
Principle (Author):
The substitution of the legal basis for a claim for reimbursement of basic income support for jobseekers based on a preliminary decision, which is based on Sections 48 and 50 of Book Ten of the German Social Code (SGB X) instead of Section 328 Paragraph 3 Sentence 2 Half-Sentence 1 of Book Three of the German Social Code (SGB III), is permissible.
Source: Juris
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Hamburg Social Court, judgment of 16 June 2014 – legally binding
Withdrawal of the approval of basic income support benefits for job seekers – requirement for the specificity of the reimbursement notice – lack of designation of the approval and amendment notices to be revoked
Guiding principles (author)
: The revocation decision does not meet the requirement of definiteness pursuant to Section 33 Paragraph 1 of the German Social Code, Book X.
In order to comply with the requirement of specificity in a decision pursuant to Sections 45 and 48 of the German Social Code, Book X (SGB X), the administrative acts whose revocation or cancellation is to be ordered must be precisely identified, i.e., their date must be stated (see, in this regard, the judgments of the Higher Social Court of Hamburg of October 20, 2011, Case No.: L 5 AS 87/08 and of October 30, 2012, Case No.: L 4 AS 117/10; the judgments of the Higher Social Court of Lower Saxony-Bremen of March 15, 2012, Case No.: L 15 AS 426/10, of August 10, 2011, Case No.: L 15 AS 1036/09 and of December 16, 2009, Case No.: L 9 AS 477/08; and the judgment of the Higher Social Court of North Rhine-Westphalia of December 18, 2006). Ref.: L 20 SO 20/06).
Neither the decision nor the appeal decision mentions a single one of the four grant decisions and numerous amendment decisions issued for the period in question, either in the operative part or in the reasoning. Therefore, no sufficiently specific revocation or withdrawal of these decisions has been ordered.
The Federal Social Court's judgment of September 10, 2013 (Case No.: B 4 AS 89/12 R) also does not indicate that the Federal Social Court considers naming the decisions to be revoked entirely unnecessary in every case. In the underlying case, the revocation notice explicitly named at least the first decisions governing the respective benefit period, including their dates, in a "subject line" (see para. 16 of the judgment). This represents a significant difference from the present case, in which neither the revocation and reimbursement notice nor the appeal decision mentions a single one of the numerous benefit and amendment notices.
In the context of an examination of the relevant case law of the Federal Social Court, it should also be noted that the Fourth Senate, in its judgment of November 29, 2012 (Case No.: B 14 AS 196/11 R), ruled—albeit not regarding the issue of specificity, but rather concerning the question of whether the reimbursement claim is unlawful or whether there is a reason to retain the benefits already provided—that amended decisions not expressly mentioned in the revocation notice are not revoked and thus constitute a legal basis for the benefits. This decision clearly demonstrates that the Federal Social Court considers an explicit revocation of the specific decisions to be necessary.
Source: socialcourtsability.de
Note:
See LSG BB, decision of 25.08.2014 – L 14 AS 3107/13 NZB – On the definiteness of a revocation and reimbursement notice (following BSG of 29.11.2012 – B 14 AS 196/11 R).
2.2 – SG Stuttgart, Judgment of 27.05.2014 – S 12 AS 1909/10
Guiding principles (Juris):
Section 7 Paragraph 4a SGB II (aF) is not applicable to pregnant persons in need of assistance who are subject to employment prohibitions under the Maternity Protection Act (MuSchG) – entitlement of a person in need of assistance to basic income support despite absence from their place of residence.
Source: www.sg-stuttgart.de
Note:
See LSG NRW, decision of 24.08.2009 – L 7 B 50/09 AS – granting of legal aid on the legal question of whether § 7 para. 4a SGB II is also applicable if the applicant stayed in India for the birth of her child.
2.3 – SG Stuttgart, decision of 07.05.2014 – S 2 AS 2302/14 ER – legally binding
Guiding principles (Juris):
A pregnant EU citizen who, in the event of the child's imminent birth, can also invoke a right of residence in Germany due to an impending family formation, is not excluded from SGB II benefits (BSG, judgment of 30.01.2013, B 4 AS 54/12 R).
If the EU citizen has been living with a man in Germany since entering the country, and he, like the applicant, swears under oath to the court that he is the father of the unborn child, then the paternity, and thus also the intention to family reunification, is sufficiently substantiated within the framework of an application for the temporary granting of SGB II benefits, even if the couple is not married and the paternity has not been acknowledged.
Source: www.sg-stuttgart.de
3. Decisions of the State Social Courts on employment promotion under the (SGB III)
3.1 – Saxon State Social Court, decision of 22.08.2014 – L 3 AL 109/14 B ER
Guiding principles (author):
The applicant is not entitled to reimbursement of costs for the professional development measure "Training as a music therapist and alternative practitioner for psychotherapy".
The applicant has failed to provide credible evidence that the measure qualifies as a further training measure for the promotion of vocational training under the Employment Promotion Act pursuant to Section 181 Paragraph 6 Sentence 2 No. 3 in conjunction with Paragraph 4 of the German Social Code, Book III (SGB III). The Act to Improve Integration Opportunities in the Labor Market of December 20, 2011 (Federal Law Gazette I, p. 2854) introduced new regulations for the accreditation of providers and measures. According to Section 176 Paragraph 2 Sentence 2 of the SGB III, vocational training measures pursuant to Sections 81 and 82 of the SGB III require accreditation under Sections 179 and 180 of the SGB III. The applicant has still not provided credible evidence, even in the appeal proceedings, that the measure she is requesting has been accredited by a competent authority.
Source: socialcourtsability.de
3.2 – Saxon State Social Court, Judgment of 03.07.2014 – L 3 AL 103/12
Guiding Principles (Author):
The applicant is not entitled to a start-up grant because she has not sufficiently demonstrated her knowledge and skills for carrying out her self-employed activity (cf. Section 57 Paragraph 2 Sentence 1 No. 4 SGB III old version). This requirement had to be independently examined by the Employment Agency; it was not covered by the viability certificate from the expert body (cf. Section 57 Paragraph 2 Sentence 1 No. 3, Sentence 2 SGB III old version).
To demonstrate the knowledge and skills required for self-employment pursuant to Section 57 Paragraph 2 No. 4 of the German Social Code, Book III (SGB III, old version), professional qualifications, certificates of acquired skills, or documentation of professional experience can be used, for example (see Social Court Lüneburg, judgment of September 29, 2011 – S 7 AL 115/10). The applicant has not submitted any such documentation. She has completed training as an educator and has subsequently worked primarily as a religious education teacher. The qualification certificates she has submitted do not relate to training or continuing education measures that are connected with or involved in preparing for starting a business.
Source: sozialgerichtsbarkeit.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Dortmund, decision of 28.08.2014 – S 41 SO 318/14 ER
Principle (Author):
Detainees in pretrial detention have a legal entitlement to vision aids and prosthetic dental care from the state of North Rhine-Westphalia. Therefore, secondary social assistance benefits are not applicable.
Source: sozialgerichtsbarkeit.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
