1. Decisions of the Federal Social Court of 17 July 2014 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 17 July 2014 – B 14 AS 25/13 R
Basic income support for job seekers – consideration and calculation of income – receipt of a wage payment for several months – multiple deduction of the basic allowance taking into account the period of employment
Guiding Principles (Author)
1. The basic allowance pursuant to Section 11 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II aF) (now Section 11b Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II)) must be deducted separately for each month if earned income accrued over a period of several months is received within one month, at least if the basic allowance could otherwise not be deducted at all in individual months, at least in the case of earned income from only one employment relationship – as here – due to a lack of payment receipt.
2. Ongoing income must be taken into account for the month in which it is received (Section 2 Paragraph 2 Sentence 1 of the former Regulation on Unemployment Benefit II (Alg II-V aF) or now Section 11 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II)). Even though it was only received on the last day of the month, the January salary credited at the end of January 2011 had to be used to cover the recipient's living expenses in January.
Source: sozialgerichtsbarkeit.de
1.2 – Federal Social Court (BSG), Judgment of July 17, 2014 – B 14 AS 54/13 R
Basic income support for job seekers – Composition of the household in a three-generation household – Consideration of income – Transfer of child benefit by the grandparent to the parent – not considered as income of the parent
Guiding principles (author)
1. When three generations, each in need of assistance, live together in one household
(mother, adult daughter, minor granddaughter), the child benefit paid to the parent entitled to child benefit of the adult child and transferred to that child must be taken into account in relation to the needs of the parent entitled to child benefit.
2. Child benefit for adult children who do not belong to the benefit unit but live in the household is legally allocated to the person entitled to the child benefit and must be considered as income for that person pursuant to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) (see, for example, the Federal Social Court's judgment of March 19, 2008 – B 11b AS 13/06 R). It is legally irrelevant that the applicant's mother actually passed on the child benefit to her. This use of the child benefit income allocated to the mother pursuant to Section 11 Paragraph 1 Sentence 1 of the SGB II does not establish a new income allocation.
Source: juris.bundessozialgericht.de
Note:
Child benefit is not counted towards Hartz IV benefits for oneself – a contribution from the Blaufelder law firm
If three generations live in one house, the middle daughter does not have to have the child benefit paid to her mother counted as income by the job center. This also applies if the mother gives the money to her daughter.
Read more: www.kanzlei-blaufelder.com
2. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
2.1 – Bavarian State Social Court, Decision of September 30, 2014 – L 16 AS 232/14 B PKH
Assumption of contribution debts in statutory health insurance
Guiding principles (Juris)
1. The German Social Code, Book II (SGB II) does not provide a legal basis for the assumption of contribution debts in statutory health insurance.
2. The granting of a loan pursuant to Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is precluded by the provision in Section 16 Paragraph 3a Sentence 2, second half-sentence, of the German Social Code, Book V (SGB V).
Source: sozialgerichtsbarkeit.de
2.2 – Bavarian State Social Court, Judgment of 18 September 2014 – L 11 AS 293/13
Unemployment benefit II, decentralized hot water generation, additional needs, electricity, hot water
Guiding principles (Juris)
1. The additional needs allowance for the costs of decentralized hot water production provided for in § 21 para. 7 SGB II does not appear to be unconstitutional.
2. A different need existing in an individual case within the meaning of Section 21 Paragraph 7 Sentence 2 Second Half-Sentence of the German Social Code, Book II (SGB II) is not solely due to the fact that the decentralized generation of hot water is carried out by means of a flow-through storage device.
Source: sozialgerichtsbarkeit.de
Note:
See also LSG NRW, Judgment of 30.01.2014 – L 6 AS 1667/12 – Entitlement to additional benefits for decentralized hot water preparation; requirements for proving actual expenses.
2.3 – Bavarian State Social Court, Judgment of 17 September 2014 – L 16 AS 813/13
Basic income support for job seekers – Exclusion from benefits due to residence in a facility for the execution of judicially ordered deprivation of liberty – Placement in a drug rehabilitation center – Permanent leave of absence from secure psychiatric care – Availability on the labor market
Guiding principles (Juris)
1. The continued execution of preventive detention (§ 64 StGB) does not preclude the granting of benefits under the SGB II if, in preparation for release, a permanent leave of absence to one's own apartment is granted and only individual appointments have to be attended in the execution facility (so-called trial living).
2. The decisive factor in determining whether placement in an institution, and thus an exclusion from benefits pursuant to Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), exists, is whether the benefit recipient still lives in the institution and whether the institution continues to assume overall responsibility for their life.
Source: sozialgerichtsbarkeit.de
Note:
Cf. Federal Social Court (BSG), judgment of June 5, 2014 – B 4 AS 32/13 – According to Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II nF), the application of the exclusion from benefits now requires that three conditions are met: – Exclusion from benefits pursuant to Section 7 Paragraph 4 SGB II – Placement in an inpatient facility – Definition of facility
2.4 – North Rhine-Westphalia State Social Court, decision of 29.09.2014 – L 19 AS 1532/14 B – legally binding
reinterpretation of a defective administrative act into another administrative act
Guiding Principles (Author)
: If a basic income support provider bases a claim for reimbursement on Sections 48 and 50 of the German Social Code, Book X (SGB X), instead of on Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III), there is indeed a substantive error in the reasoning, but this does not affect the legality of the reimbursement claim. A substitution of the legal basis is possible if the requirements of Section 328 Paragraph 3 Sentence 2 of the SGB III are met, because, unlike Sections 45 and 48 of the SGB X, this provision does not impose any requirements regarding the protection of legitimate expectations and also does not require the exercise of discretion (Lower Saxony-Bremen Higher Social Court, Judgment of June 11, 2014 – L 13 AS 143/13, not published; North Rhine-Westphalia Higher Social Court, Decision of May 23, 2013 – L 7 AS 61/13 B).
Source: sozialgerichtsbarkeit.de
2.5 – North Rhine-Westphalia State Social Court, Judgment of 08.09.2014 – L 19 AS 1507/13
Basic income support for job seekers – consideration of assets – claim for loan repayment
Guiding principles (author)
1. The applicant was not in need of assistance within the meaning of Sections 7 Paragraph 1 No. 3, 9 Paragraph 1 SGB II, because in the form of her claim for repayment of the loan against the GmbH, the applicant continuously had assets exceeding the asset allowances.
2. The fact that further realization measures are necessary to achieve an actual inflow of money or money's worth does not preclude the consideration of receivables as assets within the meaning of Section 12 of the German Social Code, Book II (SGB II). Therefore, receivables that will become due in the future can also be considered assets within the meaning of Section 12 SGB II (Federal Social Court judgment of August 30, 2010 – B 4 AS 70/09 R). The applicant's claim for reimbursement against the GmbH in the amount of originally €75,000.00 was therefore also considered an asset.
Source: sozialgerichtsbarkeit.de
Note:
See also: Bay. LSG, Judgment of 12.08.2013 – L 7 AS 233/13 – A claim for early repayment of a loan granted to a third party can be realizable assets pursuant to Section 12 SGB II and preclude the lender's need for assistance pursuant to Section 9 SGB II.
2.6 – LSG Schleswig Holstein, decision of 09.10.2014 – L 6 AS 181/14 B ER
Important decision regarding the confirmation of discretion pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), a contribution by attorney Helge Hildebrandt.
In a recent decision dated October 9, 2014, the Schleswig-Holstein State Social Court (L 6 AS 181/14 B ER) identified further discretionary considerations for decisions regarding the assumption of moving expenses and rent deposit loans under Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), which are significant for practical application (keyword: moving to an excessively expensive apartment). A summary and the full text of the decision can be found here: sozialberatung-kiel.de.
3. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – Detmold Social Court, Judgment of September 4, 2014 – S 18 AS 433/13. The appeal is granted.
Basic income support for job seekers – sanction – legally binding approval notice – reduction of the payment entitlement by operation of law – no requirement for a revocation notice pursuant to Section 48 Paragraph 1 Sentence 1 SGB 10.
In addition to the determination pursuant to Section 31b Paragraph 1 SGB II, a separate revocation notice pursuant to Section 48 SGB X is not required.
Guiding Principles (Author):
A reduction notice, which establishes a breach of duty within the meaning of Section 31 of the German Social Code, Book II (SGB II), renders a previously issued benefit award notice for the period of the reduction ineffective to the extent of the reduction (see Bavarian State Social Court, judgments of June 18, 2014, L 16 AS 297/13 and of January 30, 2014, L 7 AS 85/13; Detmold Social Court, judgment of October 17, 2013, S 18 AS 1095/12; Trier Social Court, decision of December 14, 2011, S 4 AS 449/11 ER; Lauterbach in: Gagel, SGB II/SGB III, Section 31b, marginal note 2; contra: Lower Saxony-Bremen State Social Court, decision of February 10, 2014, L 7 AS 1058/13 B). Social Court Dortmund, decisions of June 13, 2014, S 32 AS 1173/14 ER and of May 26, 2014, S 35 AS 1758/14 ER; Eicher, SGB II, 3rd ed. 2013, § 31b para. 7; regarding the old legal situation, Federal Social Court, judgment of December 17, 2009, B 4 AS 30/09 R).
Source: sozialgerichtsbarkeit.de
Note:
A very recent, different view is held by Social Court Potsdam, judgment of November 26, 2013 – S 40 AS 1588/12 – appeal pending before the Higher Social Court of Berlin-Brandenburg – L 5 AS 125/14
3.2 – SG Duisburg, Decision of 30.09.2014 – S 26 AS 3037/14 ER
Principle: Three cars of low value are not considered assets that can be used to offset benefits. Changing first names does not raise doubts about the need for assistance.
The author has a copy of the ruling.
3.3 – Social Court Dresden, decision of 10 October 2014 – S 20 AS 5639/14 ER (legally binding)
Single people are also entitled to a washing machine
Principle (Author):
The entitlement to initial furnishings for an apartment includes a washing machine, even in a single-person household. Applicants are not required to use a laundromat, as the additional costs incurred are not covered by the standard benefit of €391.
Press release from the Social Court of Dresden dated October 17, 2014: www.justiz.sachsen.de
3.4 – Social Court Karlsruhe, Judgment of 03.09.2014 – S 8 AS 855/13
Unemployment benefit II – Reimbursement of passport renewal costs
Job centers are not required to cover the costs of obtaining a new passport – this is not an additional need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) – the provisions of the German Social Code, Book XII (SGB XII) do not apply analogously
Guiding Principles (Author)
1. Such a legal basis for a claim is not found in the German Social Code, Book II (SGB II). Passport procurement costs, including associated incidental costs such as travel expenses, are to be allocated to the needs covered by the standard benefit according to § 20 SGB II and must be covered by savings.
2. Before taking out a loan pursuant to Section 24 Paragraph 1 of the German Social Code, Book II (SGB II) regarding passport renewal costs, the person in need of assistance must be referred to the basic allowances under Section 12 Paragraph 2 Sentence 1 Numbers 1, 1a, and 4 of the SGB II.
Source: sozialgerichtsbarkeit.de
4. Decisions of the Higher Social Courts on Employment Promotion (SGB III)
4.1 – Higher Social Court of North Rhine-Westphalia, Judgment of September 25, 2014 – L 9 AL 219/13
Actual entitlement to unemployment benefits as a prerequisite for the granting of a start-up subsidy – Section 93 SGB III
Guiding Principles (Author):
If, at no point prior to the commencement of self-employment, an entitlement to payment of wage replacement benefits exists due to a suspension of benefits, an entitlement to a start-up grant pursuant to Section 93 Paragraph 2 Sentence 1 No. 1 of the German Social Code, Book III (SGB III) cannot arise in the first place (see, in general, the legally binding decision of the Senate of April 16, 2014 – L 9 AL 297/13).
Source: sozialgerichtsbarkeit.de
5. Decisions of the Social Courts on Social Assistance (SGB X II)
5.1 – Social Court Karlsruhe, Decision of October 7, 2014 – S 1 SO 3231/14 ER
Preliminary legal protection – social court proceedings – basic income support for the elderly and those with reduced earning capacity – assisted living – relocation – responsible social welfare agency
Principles (Juris):
If a recipient of social assistance who receives both basic income support under Chapter Four of the German Social Code, Book XII (SGB XII) and benefits for supported living, moves to the local jurisdiction of a different social welfare agency, the previous social welfare agency remains locally responsible for providing the benefits if the recipient continues to receive supported living benefits continuously or receives them again within one month.
Source: sozialgerichtsbarkeit.de
5.2 – Social Court Karlsruhe, Decision of October 13, 2014 – S 1 SO 3291/14 ER
Social assistance – subsistence support – accommodation – eviction proceedings – suspension of benefits
Legal Principles (Juris):
The mere fact that a person seeking assistance is legally obligated to vacate their rented apartment and hand it over to the landlord does not, as long as they are still actually living in the apartment, lead to a change in their need for assistance. The resulting (payment) cessation of benefits by the social welfare agency is unlawful.
Source: sozialgerichtsbarkeit.de
5.3 – Social Court Karlsruhe, decision of 30.09.2014 – S 1 SO 3101/14 ER
Social assistance – integration assistance – assistance with school education – university education – completed vocational training
Guiding principles (Juris)
: Integration assistance (here: assistance for higher education) by the social welfare agency is not excluded even if the applicant has already successfully completed vocational training, provided that the higher education constitutes "appropriate" vocational training.
Source: sozialgerichtsbarkeit.de
5.4 – Social Court Detmold, decision of October 1, 2014 – S 8 SO 233/14 ER
Regarding the granting of additional support due to costly nutrition (here celiac disease as well as allergies and food intolerances) in preliminary legal protection proceedings.
Guiding Principles (Author):
Here, the applicant credibly demonstrated his special nutritional needs by submitting medical documentation. Given the risk that the applicant would be unable to meet his actual needs at the subsistence level without the additional allowance, the application was to be granted.
Source: sozialgerichtsbarkeit.de
6. Higher Social Court of North Rhine-Westphalia: No basic income support for students
beck-fachdienst Sozialversicherungsrecht – FD-SozVR 2014, 362488
SGB XII § 22; BAföG § 7
1. Anyone completing a course of study that is eligible for funding cannot claim basic income support benefits according to § 22 SGB XII. This remains the case even if the person is permanently and totally incapacitated for work and reintegration into the workforce is not expected.
2. A special hardship case within the meaning of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) does not exist simply because the studies have a therapeutic effect on the person concerned, enabling them to structure their daily life and participate in social life, and thus maintaining their psychological stability. (Author's Headnotes)
LSG North Rhine-Westphalia, decision of 04.08.2014 – L 9 SO 279/14 B, BeckRS 2014, 71362
Comment by Attorney Prof. Dr. Hermann Plagemann, Plagemann Attorneys at Law, Frankfurt am Main.
From beck-fachdienst Sozialversicherungsrecht 20/2014 of October 10, 2014.
Read more: beck-aktuell.beck.de
7. How do I recognize my rights before psychological assessments? and Healthy, ill, or unable to work? – 2 new leaflets by Anne Allex
1. Healthy, ill, or unable to work?
2. How do I recognize my rights during assessments?
Read more: www.pariser-kommune.de
Note:
See the letter from the job center – “You are now considered mentally disabled”, available here: www.lokalkompass.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
