1. Decisions of the Federal Constitutional Court on (SGB II)
BVerfG - Press release No. 76/2014 of September 9, 2014: Social law standard needs benefits are currently still constitutional - the subject of the proceedings are the standard needs benefits for single people, for adults living together, for children up to six years of age and for young people between the ages of 14 and 17.
Guiding principles (court)
on the decision of the First Senate of July 23, 2014
- 1 BvL 10/12 -
- 1 BvL 12/12 -
- 1 BvR 1691/13 -
1. To ensure a humane minimum subsistence level (Art. 1 Para. 1 in In conjunction with Article 20 Para. 1 GG), the requirements of the Basic Law to actually ensure a humane existence must not ultimately be missed and the amount of subsistence benefits must be viable overall.
2. The legislature is not constitutionally prevented from subsequently removing individual items from the generally permissible statistical calculation of the amount of subsistence benefits based on the shopping basket model.
However, the standard need to secure a living must either be such that any shortfalls can be compensated for internally or covered through savings, or must be secured through additional benefit entitlements. Source: www.bundesverfassungsgericht.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - State Social Court of Baden-Württemberg, judgment of August 26, 2014 - L 9 AS 2809/13 - unpublished
Obligation of the job center to exercise discretion when asking the beneficiary to apply for a pension - integration agreement - increase the pension entitlement through federal voluntary service - exercise of discretion - failure to exercise discretion - unfairness regulation is not final
Guiding principles (author)
1. As long as the pension insurance provider has not yet approved a pension, the request to apply for a pension has legal effects, as the JC's application to grant a pension to the applicant will still be withdrawn could (cf. BSG, decision of June 12, 2013, B 14 AS 225/12 B, nv) and the purpose of the invitation to apply for a pension, the receipt of priority social benefits, has not yet been achieved (SG Cottbus, judgment of May 15, 2014 - p 14 AS 4304/13).
2. Before requesting a pension application, the basic security provider must exercise discretion, because according to Section 5 Paragraph 3 Sentence 1 SGB II, the benefit providers can submit the application on behalf of the beneficiary if the beneficiary is not ready to apply for a pension despite being asked to do so.
Application for pension by the authority is at the discretion of the JC. However, the request to apply for a pension requires a discretionary decision. Otherwise, the benefit recipient who submits the application as requested would be disadvantaged because in his case the discretionary decision would no longer take place before the application was completed. Therefore, this decision must be brought forward and made as part of the request review (cf. LSG Berlin-Brandenburg, decision of September 27, 2013 - L 28 AS 2330/13 B ER). 3. Since the job center only checked the unfairness V, but did not exercise any other discretion, there is a failure to exercise discretion, which leads to the decisions being illegal.
4. The reasons for unfairness in accordance with Sections 2 to 5 of the Inequity V are not exhaustive, so that if the regulated reasons for unfairness are not present, the job center must exercise its discretion in full (LSG NRW, decision of May 19, 2014 - L 7 AS 545/14 B ER; LSG BB, decision of September 27, 2013 - L 28 AS 2330/13 B ER; SG Dresden, decision of February 21, 2014 - S 28 AS 567/14 ER; aA SG Leipzig, court decision of May 13, 2014, S 17 AS 4284/ 13 ; the result left open: LSG NRW, decision of May 22, 2013 - L 19 AS 291/13 B ER -).
5. The JC did not take into account that the allowance for federal voluntary service (Section 1 Para. 7 Alg II-V) only applies within the framework of SGB II. There is no corresponding regulation in SGB XII. In this respect, the JC should have determined whether a supplementary grant of benefits was necessary in accordance with SGB – L 7 AS 545/14 B ER).
6. It would also have required a discretionary assessment with regard to the question of whether, based on the integration agreement concluded, it is only reasonable to apply for a pension for the period after reaching the age of 63 and thus also after the required start of the old-age pension (cf. LSG BB, decision of September 27, 2013 – L 28 AS 2330/13 B ER).
The court's comment:
It remains to be seen whether the JC could be obliged under Section 131 Paragraph 1 Sentence 1 SGG to withdraw the pension application as part of the elimination of the consequences or whether the pension application by the JC is an aliud to the application by the benefit recipient (LB ). For a decision by the Senate in accordance with Section 131 Paragraph 1 Sentence 1 SGG would have required a corresponding application from the LB, which was not made in the present case.
The full text of the judgment is available, my thanks go to the LSG BW.
2.2 – State Social Court of North Rhine-Westphalia, judgment of August 7, 2014 – L 7 AS 269/14
Job center does not have to cover any costs as a subsidy for two new lenses as services according to SGB II - on the term therapeutic device
Guiding principles (author)
1. The applicant is not entitled to reimbursement of the costs of the lenses according to Section 21 Paragraph 6 SGB II according to Section 24 Paragraph 3 No. 3 SGB II.
2. A special need can be affirmed here because the applicant (applicant) has proven the medical necessity of the new lenses by submitting a medical prescription and the health insurance company is the primary service provider in accordance with Section 33 Paragraph 2 Sentence 2 SGB V to provide the service is not obliged to do so due to a lack of severe visual impairment.
However, neither an ongoing nor an unavoidable need can be affirmed here. 3. It is an ongoing need if it occurs not just once, but multiple times within six months. A regularly recurring need can also exist if it is predicted to arise again at least in the next approval phase. Taking into account the specific nature of the need, an ongoing need can also be assumed if it occurs more frequently, but is not necessarily present in every approval phase and, due to the amount of the associated expenses, does not go beyond the loan regulation of Section 24 Paragraph 1 SGB II can be recorded (LSG) NRW, resolution of June 12, 2013 - L 7 AS 138/13 B).
4. The cost of the lenses, minus the glasses insurance, amounts to 144.80 euros.
This amount could be saved in four months, assuming a reasonable savings rate of 10% of the relevant standard requirement, i.e. 37.40 euros. This could be the contrast. already cover the costs in one approval phase at the stated savings rate. At this amount, the humane subsistence level does not appear to be at risk. It cannot be assumed that the Antrast. new lenses were needed in the next approval phase. There is no evidence of a chronic eye disease that is accompanied by a rapid change in vision. In this case, it cannot be assumed that there will be a regularly recurring need. 5. He also has no claim under Section 24 Paragraph 3 No. 3 SGB II in the context of special needs for the costs of his spectacle lenses.
With those from Antrast. The lenses used are not a repair of a therapeutic device. The replacement of spectacle lenses does not constitute a repair. The legal question as to whether the spectacle lenses are a therapeutic device could be left open, since the claim according to Section 24 Paragraph 3 No. 3 SGB II was already based on the lack of repair of the spectacle lenses is not given (cf. on glasses as a therapeutic device - SG Osnabrück (judgment of February 5th, 2013 - S 33 AS 46/12). Source: Sozialgerichtsbaren.de
2.3 - State Social Court of North Rhine-Westphalia, decision of September 8, 2014 - L 2 AS 1461/14 B - legally binding
necessity of issuing a cancellation notice to implement a sanction
Guiding principles (author)
1. Granting of legal aid, because whether the implementation of a sanction according to §§ 31, 32 Second Book of the Social Code (SGB II) requires the revocation of an approval decision that has already been issued or not or whether it can be assumed that it is implied with the The reduction decision is controversial.
2. According to one opinion, a revocation of the approval notice is not necessary because the wording of the new regulation of Section 31b Paragraph 1 Sentence 1 SGB II (reduction in the “right to payment”), which came into force on April 1, 2012, suggests that the approval is based on the reason remains in effect and only the payout is affected. The entitlement to benefits established in the approval notice therefore remains unaffected and does not have to be revoked.
3. Rather, the reduction occurs by law (Bay LSG, judgment of January 30, 2014 - L 7 AS 85/13).
4. If one follows this view, only an isolated action to challenge the sanction decision is permissible, in which the legality of the sanction is examined.
Emergency social court protection can then be achieved by ordering the suspensive effect of objections and lawsuits. 5. There are, however, concerns raised about this view: the division into “entitlement to benefits” and “entitlement to payment” is not convincing. Rather, both should be viewed as a unit, with the payment being only the “automatic” consequence of the previous approval. Even if the reduction in entitlement occurs by law, the “formal legal entitlement” from the approval notice must be repealed. The determination of the reduction leads to a “change in circumstances”, which is a prerequisite for a repeal according to Section 48 Tenth Book of the Social Security Code (SGB AS 1058/13 B; Hessisches LSG resolution of December 3, 2013 L 9 AS 614/13 B; SG Dortmund, resolution of May 26, 2014 - S 35 AS 1758/14 ER; Resolution of June 13, 2014 - S 32 AS 1173/14 HE).
6. There are also concerns about interpreting the reduction decision as an implied cancellation of the approval decision.
It seems doubtful whether a formulation that merely reflects the wording of Section 31b SGB II can at the same time be understood as a change to the previously issued approval decision (Hessisches LSG, decision of December 3, 2013 - L 9 AS 614/13 B) rejects such an interpretation would also, taking into account the necessary specificity, at least require that the date of the disputed initial decision be named in the reduction decision (also LSG NRW, decision of March 4, 2013 - L 19 AS 1688/12 B with reference to BSG, judgment of November 29, 2012 - B 14 AS 196/11 R). Source: socialcourtsability.de
Note:
Left open - SG Neuruppin, decision of May 27, 2014 - S 17 AS 659/14 ER
2.4 – LSG NRW, decision of. 09/04/2014 – L 7 AS 1018/14 B ER
No sanctions if obligations are not sufficiently defined.
Guiding principles:
1. However, a benefit recipient may not be burdened with the risk of a reduction in benefits within the meaning of Sections 31 - 31 b SGB if his obligation is not sufficiently determined in the individual case.
2. It does not follow from the attached appendix to the information on the legal consequences that the applicant's behavior with regard to the obligations imposed under “Obligation 7” is exempt from sanctions. In this respect, obligation 7 does not contain any legal consequences for the support of the applicant by the job club for the coming months after the initial interview.
3. In the event of a possible reduction in performance, the legal consequences do not distinguish between violations of the applicant's obligation to make efforts to integrate into work and violations of obligations within the scope of extended support for the applicant's own efforts.
4. This applies in particular to the mandatory participation in mandatory training measures listed in “Obligation 7”, such as application management, self-marketing, interview practice, job search and preparation of application documents.
5. This brings forward any breach of duty to the applicant's detriment, without relying on a verifiable specific individual measure.
Source: Unemployed Forum Germany: www.elo-forum.org
2.5 - State Social Court of North Rhine-Westphalia, decision of September 3, 2014 - L 2 AS 1195/14 B ER - legally binding
For an assurance according to Section 22 Paragraph 4 Sentence 2 SGB II and Section 22 Paragraph 6 Sentence 2 SGB II, one is missing Reason for order.
Guiding principles (author)
Exclusion of a claim to an assurance from the basic security provider to cover the costs of accommodation for the new apartment through interim legal protection (LSG NRW-, decision of February 22, 2013 - L 2 AS 2299/12 B). The granting of an assurance is not a prerequisite for the assumption of future, higher costs of accommodation and heating (BSG, judgment of November 22, 2011 - B 4 AS 219/10 R).
The guarantee for housing procurement costs or moving costs also lacks the particular urgency required for the interim legal protection procedure. The granting of an assurance is generally a prerequisite for the assumption of housing costs and moving costs. However, it can be dispensed with in the event of a breach of a possible timely decision (see BSG, judgment of May 6, 2010 - B 14 AS 7/09 R).
Source: socialcourtsability.de
Note 1:
See SG Neuruppin, decision of July 28, 2014 - S 26 AS 1393/14 ER - The (provisional) granting of an assurance to cover housing and moving costs within the meaning of Section 22 Paragraph 6 can also be granted within the framework of interim legal protection proceedings SGB II should be striven for.
Note 2:
Bay LSG, decision of July 14, 2014 - L 7 AS 517/14 B ER - In interim legal protection, only a provisional assurance can usually be obtained, from which only provisional benefits (in this case the rent of the new apartment) can then be claimed . Final clarification of the claim is reserved for the main proceedings.
2.6 - State Social Court of North Rhine-Westphalia, decision of September 3, 2014 - L 2 AS 996/14 B ER - legally binding
Provisional grant of ALG II for Polish citizens - doubts about the ability to work
Guidelines (author)
The provider of basic security for job seekers is obliged to pay unemployment benefit II (Alg II) even if it assumes that there is no ability to work but has not coordinated with the responsible social welfare provider about the existence of the inability to work (BSG, Judgment of November 7th, 2006 – B 7b AS 10/06 R). No such vote took place here.
However, if there are doubts about the ability to work, the basic security provider must provide benefits in accordance with Section 44a Paragraph 1 Sentence 7 SGB II until the conciliation board makes a decision about the ability to work.
The inability to work does not arise from the fact that the applicant is a foreigner.
With regard to the earning capacity of foreigners, Section 8 Paragraph 2 SGB II stipulates that they can only be employed within the meaning of Section 8 Paragraph 1 SGB II if they are permitted or could be permitted to take up employment (sentence 1). In this respect, the abstract legal possibility of issuing a work permit must be taken into account (Section 8 Paragraph 2 Sentence 2 SGB II; BSG, judgment of January 30, 2013 - B 4 AS 54/12 R). As a Polish citizen, the applicant does not need a work permit to take up employment due to the unrestricted freedom of movement of workers. Source: socialcourtsability.de
2.7 - State Social Court of North Rhine-Westphalia, decision of August 21, 2014 - L 11 SF 489/13 EK AS - legally binding
Based solely on the length of time (12 months), it cannot be concluded that the duration of the proceedings is unreasonable.
Guiding principles (author)
Because § 198 GVG, which in turn is based on the requirements of the case law of the European Court of Human Rights and the Federal Constitutional Court (see BVerfG, decision of December 14, 2010 - 1 BvR 404/10 -) (cf. Higher Administrative Court (OVG) of the state of Saxony-Anhalt, judgment of July 25, 2012 - 7 KE 1/11 - mwN), does not specify a legally defined limit for the appropriateness of the duration of the procedure, but on the contrary is based on the length of the procedure being unreasonable in individual cases.
With Section 198 Paragraph 1 Sentence 2 GVG, the legislature expressly refrained from a “time limit solution” because it would not do justice to the diversity of procedural situations (including Federal Administrative Court, judgment of July 11, 2013 - 5 C 27/12). Source: socialcourtsability.de
Note:
See BSG, judgments of September 3, 2014 - B 10 ÜG 9/13 R - Claim for compensation in excessively long court proceedings: circumstances of the individual case are decisive
2.8 – LSG Niedersachsen-Bremen, decision of September 4, 2014 – L 9 AS 626/14 B ER
LSG Lower Saxony-Bremen decides as part of the assessment of the consequences for EU foreigners (SGB II)
Guiding principles (author)
The exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II only applies if the right of residence exists solely for the purpose of looking for work.
The wife's right of residence arises from the FreizügG/EU as a family member and therefore not solely to look for work. In the interim legal protection procedure, the only thing that matters is whether the other family member - in this case the husband - is not excluded from benefits under SGB II.
continue reading: LSG Lower Saxony-Bremen decides as part of the assessment of the consequences for EU foreigners (SGB II), an article by lawyer Denis König, Willi-Eichler-Str. 11, 37079 Göttingen, article published on anwalt.de: www.anwalt.de
Note:
See different opinion LSG NSB, judgment of March 18, 2014, L 15 AS 393/11 (revision was permitted) “The exclusion of benefits in the first three months of the stay according to Section 7 Paragraph 1 Sentence 2 No. 1 SGB II also affects family members who join an EU citizen already living in Germany.”
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – Dortmund Social Court, decision of September 3rd, 2014 – S 35 AS 2904/14
No interim legal protection against administrative integration acts
Guiding principles (author)
The mere obligation of an applicant to undertake certain integration efforts does not fundamentally justify the need for accelerated judicial clarification.
As part of an application in accordance with Section 86 b Paragraph 1 Sentence 1 No. 2 SGG, the generally formulated requirement of existential urgency for the issuance of an interim order in accordance with Section 86 b Paragraph 2 SGG cannot be made.
The need for a “certain degree of urgency” (cf. SG Dortmund, decision of July 25, 2014 - S 32 AS 2343/14 ER) arises independently of this from the nature of interim legal protection itself: This is intended to create a provisional regulation until a final decision has created legal certainty with regard to a legal question in dispute between the parties to the proceedings. This also applies to the application according to Section 86 b Paragraph 1 Sentence 1 No. 2 SGG: The suspensive effect of an appeal can only be ordered as long as it is “in the world”.
However, there is no need for a provisional regulation if the burden imposed on the applicant is only of a marginal nature and the applicant can be expected to wait for a decision on the main issue from any perspective. This is regularly the case in disputes over administrative integration acts in accordance with Section 15 Paragraph 1 Sentence 6 SGB II: The mere obligation of an applicant to undertake certain integration efforts does not in principle justify the need for accelerated judicial clarification. The actual impairment only arises when a sanction is determined in response to the applicant's violation of the administrative integration act. However, the applicant can still seek independent preliminary legal protection against such a sanction after it has been determined (on a similar case, Bavarian LSG, decision of December 20, 2012 - L 7 AS 862/12 B ER).
In the present case there is no reason to deviate from the above principles.
Taking into account the applicant's statement that what he is primarily interested in is the possibility of applying for “higher-level” positions, the impairment of his interests by the administrative integration act appears to be completely insignificant. Source: socialcourtsability.de
3.2 – Braunschweig Social Court, judgment of June 11, 2014 – S 52 AS 2515/13
Rent caps at the Jobcenter Helmstedt do not stand up to judicial review - Jobcenter has to pay higher accommodation costs to a family of six.
Source: www.kostenlose-richter.de
3.3 - Cottbus Social Court, judgment of August 20, 2014 - S 2 AS 3428/12 - The appeal is permitted.
Basic security for job seekers - income consideration - expense allowances for carers - earmarked income
Guiding principle (Juris)
1. Expense allowances for carers (§ 1835a BGB) are earmarked income that is excluded from being taken into account as income.
2. The typical area of application of Section 328 Paragraph 1 SGB III is not open if the beneficiary is expected to receive a one-off annual income if he applies for it.
Source: socialcourtsability.de
4. Decisions of the state social courts on social assistance (SGB X II)
4.1 – Bavarian State Social Court, decision of August 22, 2014 – L 8 SO 117/14 B ER
Successful complaint by a social welfare agency against an interim order of the SG to provisionally cover rental expenses for the remaining period of imprisonment Guiding
principles (Juris)
1. Even then, the social welfare agency does not lack an interest in legal protection for a complaint according to §§ 172 ff. SGG against an interim Order if he has now fully complied with the obligation of the SG to provide provisional benefits (contrary to Bayer. LSG, resolutions of July 10, 2009, L 7 AS 323/09 B ER, of February 24, 2011, L 7 AS 54/11 B ER, and from April 11, 2011, L 16 AS 168/11 B ER).
2. Special living conditions with social difficulties within the meaning of Section 67 SGB
3. When providing services in accordance with Sections 67 ff. SGB XII, the social welfare provider has discretion.
In any case, the (total or remaining) duration of detention is not the only decisive factor (BSG, ibid). Source: socialcourtsability.de
Note:
See SG Detmold, judgment of July 8, 2014 - S 8 SO 147/13 - Applicant is not entitled to cover the rent and additional costs as well as the rent arrears for the ten-month detention period in accordance with the provisions of Chapter 8 of SGB XII.
4.2 – State Social Court of North Rhine-Westphalia, judgment of July 17, 2014 – L 9 SO 388/12
No entitlement to one-off assistance to cover a claim for gas and electricity costs - knowledge according to Section 18 SGB
The only decisive factor is whether and to what extent the person seeking help is exposed to a serious demand. Guiding principles (author)
1. The assumption of heating and electricity cost debts in accordance with Section 36 Paragraph 1 SGB XII is only possible if there is a risk to the accommodation or there is a “comparable emergency” to the impending homelessness. That is not the case here.
2. According to general opinion, a “comparable emergency situation” within the meaning of Section 36 Paragraph 1 Sentence 1 SGB Resolution of the Senate of November 25, 2013 – L 9 SO 441/13 B ER).
3. For the corresponding application of Section 36 Paragraph 1 Sentence 2 SGB /13 B ER, L 7 AS 1117/13 B). Both are missing here.
4. With regard to the additional demand for electricity costs, there is no unavoidable need required under Section 27a Paragraph 4 Sentence 1 2nd Alternative SGB XII and Section 37 Paragraph 1 SGB
The electricity cost claim is a debt in the sense of social welfare law, which, as can be seen directly from Section 36 Paragraph 1 SGB can. 5. The distinction between debts and current benefits in accordance with Section 35 SGB Accommodation needs that lie in the past and have not yet been covered by the social welfare provider.
Source: socialcourtsability.de
Note:
See also LSG NRW, decision of May 26, 2014 - L 9 SO 474/13 - No entitlement to one-off aid to cover additional electricity costs
5. EU Commission – Germany must not refuse Hartz IV across the board
Germany may not generally exclude unemployed EU citizens from Hartz IV benefits.
The EU Commission believes that Germany's behavior is not consistent with European law and is calling for clear criteria. Read more: www.faz.net
6th VG Freiburg (Breisgau) 4th Chamber, decision of.
09/04/2014: Water blockage in the event of arrears in payments made more difficult - preventing a Hartz IV recipient from turning off the tap VG Freiburg, decision by.
04.09.2014 - 4 K 1748/14 Guiding principle
The (simple) cessation of water delivery is not an administrative act, but a real act.
The administrative legal process is available for an application for an interim order with the aim of prohibiting the discontinuation of the water supply.
The legal basis (in a municipal water supply statute) for the discontinuation of water supply due to arrears in fees does not create an obligation on the part of the water supplier, but rather places the discontinuation of supply at its discretion.
Stopping the water supply due to the supplier's outstanding claims is only justified if it concerns claims arising specifically from the water supply relationship.
A suspension of supply may not (also) be based on the fact that a water recipient has not or will not meet his financial obligations due to other public demands, in particular due to outstanding fees for wastewater disposal. Source: dejure.org
7. KOS: Constitutional Court on Hartz IV: Entitlement to travel expenses applies immediately
The decision of the Federal Constitutional Court (BVerfG) brings at least a concrete and immediately effective improvement for families receiving Hartz IV: Children are entitled to additional travel costs if they use the vouchers for social participation and are active in a sports club. We commented on the BVerfG's decision in a press release.
Read more… www.kaufslos.de
8. The Hartz IV laws are the workhouses of the 21st century.
The Hartz IV law is to be tightened on April 1, 2015.
Poverty should therefore continue to serve as a deterrent example. Next: www.heise.de
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
