1. Decisions of the Court of Justice of the European Union (CJEU) of 11 November 2014 on the German Social Code, Book II (SGB II)
1.1 – ECJ, Judgment of 11 November 2014 – C-333/13
Germany may exclude non-working EU citizens from certain social benefits – A Romanian woman not seeking employment is not entitled to Hartz IV.
Non-working EU citizens who move to another Member State solely for the purpose of receiving social assistance may be excluded from certain social benefits.
Source: Court of Justice of the European Union – PRESS RELEASE No. 146/14: curia.europa.eu (pdf)
Note:
Non-job-seeking EU foreigner only a special case (TELEPOLIS)
Exclusion of social benefits for EU immigrants: Legal experts criticize the fact that the current ECJ ruling does not provide legal certainty in many cases.
Read more: www.heise.de
2. Decisions of the Federal Social Court of 06.08.2014 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 06.08.2014 – B 4 AS 37/13 R
Unemployment benefit II – Cost reduction procedure – unreasonable accommodation costs of a single-person household in Aachen – Rejection of the relocation commitment – Renting a house – Rejection of relocation costs due to exceeding the reasonable limit – Subletting a parking space on the property – Reduction of the accommodation requirement by the rental income
Guiding principles (Author)
1. Subletting parts of the rented accommodation must be taken into account as cost-reduction measures when calculating the accommodation costs. Payments received from such funds do not generally constitute income within the meaning of Section 11 of the German Social Code, Book II (SGB
II). 2. As a rule, the expenses associated with the move can only be specified by the benefit recipient shortly before the move is imminent, so that only then can the basic income support provider make a decision regarding the assumption of these expenses, both in principle and in amount, pursuant to Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) as amended (now Section 22 Paragraph 6).
3. Issuance of a prior commitment pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) as amended (now Section 22 Paragraph 4) is not a prerequisite for the assumption of expenses within the meaning of Section 22 Paragraph 3 of the German Social Code, Book II (SGB II), because the decision regarding benefits related to the move is to be made by the benefit provider independently of this.
4. According to Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), these benefits can also be provided in cases where the costs of the new accommodation are deemed abstractly unreasonable. Conversely, the benefit provider is not obligated under Section 22 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) (old version), to cover housing procurement and/or moving costs as well as the rental deposit if the new accommodation is unreasonably expensive in principle. Therefore, a prior assurance as defined in Section 22 Paragraph 4 of the SGB II, which would otherwise be required before a decision under Section 22 Paragraph 6 of the SGB II, is not necessary.
5. Section 22 Paragraph 6 Sentence 1 of the SGB II (new version) generally grants benefit providers the option of covering housing procurement and moving costs as well as a rental deposit even if the move is not initiated or otherwise necessary by the benefit provider and/or the rental costs for the new accommodation exceed the abstract limit of reasonableness.
Source: juris.bundessozialgericht.de
Note 1:
Similarly, regarding the application for relocation expenses under the German Social Code, Book XII (SGB XII): Social Court Detmold, decision of October 17, 2014 – S 8 SO 237/14 ER – and most recently, Bavarian State Social Court, judgment of September 24, 2014 – L 8 SO 95/14
Note 2:
Regarding the confirmation of discretion pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), see the decision of the Schleswig-Holstein Higher Social Court (LSG Schleswig-Holstein) of October 9, 2014 – L 6 AS 181/14 B ER –
3. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – State Social Court of Saxony-Anhalt, Judgment of 24 April 2014 – L 2 AS 54/13 – Appeal pending before the Federal Social Court under file number B 14 AS 36/14 R
Exclusion of benefits for trainees – abstract eligibility for funding of training – disabled person – receipt of training allowance – accommodation cost subsidy – fictitious means test – failure to consider additional needs
Disabled people receiving training allowances are excluded from basic benefits under the German Social Code, Book II (SGB II).
Guiding Principles (Author)
1. The mere fact that the training is eligible for funding in principle is a prerequisite for the legal consequence of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), and thus for the exclusion of benefits to secure subsistence. Section 7 Paragraph 5 of the SGB II refers solely to the so-called abstract eligibility for funding (established case law of the Federal Social Court (BSG), inter alia judgment of September 6, 2007, B 14/7b AS 28/06 R; judgment of March 22, 2012 with further references, B 4 AS 102/11 R).
2. For trainees, training assistance payments must also be considered as income in the amount received, unless they are specifically earmarked for certain training-related needs. A paid vocational training allowance is not to be adjusted for training-related needs, because such needs (like travel expenses or course fees) are taken into account separately (see Federal Social Court, judgment of March 22, 2010, B 4 AS 69/09 R). This also applies accordingly to training allowances.
Source: sozialgerichtsbarkeit.de
Note:
Cf. BSG, Judgment of 06.08.2014 – B 4 AS 55/13 R – Disabled people receiving training allowance are excluded from basic benefits under SGB II.
3.2 – LSG NRW, decision of 28.10.2014 – L 19 AS 1880/14 B – and – L 19 AS 1906/14 B – legally
binding: Relatives must testify in Hartz IV proceedings – No right to refuse to testify in family financial matters
Guiding Principles (Author)
1. In principle, everyone is obligated to testify in court as a witness, unless the law expressly grants them the right to refuse to testify. In principle, direct relatives and in-laws would have the right to refuse to testify.
2. However, this does not apply to matters concerning family assets. Such matters also include the question of what income or assets members of a household receiving benefits possess, if this may be taken into account when calculating their Hartz IV entitlement.
Source: Press release from the North Rhine-Westphalia State Social Court (LSG NRW) dated November 10, 2014: www.lsg.nrw.de
The full text of the decisions can be found here: sozialgerichtsbarkeit.de and sozialgerichtsbarkeit.de
3.3 – North Rhine-Westphalia State Social Court, Decision of October 20, 2014 – L 19 AS 1287/14 B – legally binding.
The transfer of benefits to secure subsistence under Book II of the German Social Code (SGB II) must be made in such a timely manner that the benefit amount is available to the beneficiary on the first day of each month or the first working day of the month. The only possible legal basis for claiming reimbursement of the incurred chargeback fees is a claim for official liability under Section 839 of the German Civil Code (BGB), for which recourse to the civil courts is available.
Guiding Principles (Author)
: 1. Neither the provisions of Book II of the German Social Code (SGB II) nor those of Book I of the German Social Code (SGB I) provide for compensation for damages resulting from a delayed processing of a benefit payment. The civil law provisions on compensation for damages due to delay (Sections 286 Paragraph 1, 288 BGB) are not applicable by analogy to the relationship between the benefit provider and the benefit recipient.
2. According to Section 41 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), benefits to secure subsistence are to be provided monthly in advance. These benefits are considered provided upon payment in accordance with Section 42 of the SGB II, whereby fulfillment of the obligation under Section 362 of the German Civil Code (BGB) regularly only occurs upon crediting the recipient's account.
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Marburg Social Court, judgment of October 14, 2014 (Case No.: S 8 AS 159/14):
Guiding Principles Dr. Manfred Hammel
1. A relocation within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II does not exist if an indigent person was tolerated in their previous apartment only due to family ties, without a concrete right of residence and only as a mere favor or family "obligation", has lost this accommodation, which was free of charge for them, due to a family falling out with their sister, and moves into a new apartment secured by a tenancy agreement in order to overcome homelessness.
2. In this situation, this person in need of assistance sought and rented individual living space for the first time.
3. In the case of such a first-time occupancy of an apartment, no approval of the SGB II provider for the move is required in accordance with Section 22 Paragraph 4 of the SGB II.
4. In this particular situation of homelessness, the requirements for finding accommodation should not be too high for the affected destitute person.
5. There is currently no foreseeable and plannable period available for renting very inexpensive accommodation at short notice.
6. In atypical cases where the temporary rental of an unsuitable apartment was necessary, a job center may respond with a cost reduction request based on Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II).
4.2 – SG Berlin, decision of 01.10.2014 – S 147 AS 21183/14 ER
An unlawful employment contract with the training provider protects against sanctions, an article by attorney Kay Füßlein: www.ra-fuesslein.de
4.3 – Social Court Halle (Saale), decision of 17 October 2014 – S 17 AS 3937/14 ER
Basic income support for job seekers – Exclusion of benefits for foreigners residing in Germany for the purpose of seeking employment – EU citizens – Referral to the European Court of Justice – Granting of provisional benefits – Exercise of discretion – Additional needs allowance for single parents – Guarantee of a dignified minimum standard of living
Guiding Principles (Author):
The provisional granting of benefits under the German Social Code, Book II (SGB II) to a Romanian family is, in fact, the only possible decision here, because otherwise the fundamental right to a dignified minimum standard of living for the applicants, derived from Article 1, Paragraph 1 of the German Basic Law (GG) in conjunction with the social welfare principle of Article 20, Paragraph 1 GG, cannot be guaranteed. Article 1, Paragraph 1 GG establishes this right as a human right.
Source: socialcourtsability.de
Note:
See also LSG Saxony-Anhalt, decision of 1 November 2013 – L 2 AS 841/13 B ER
4.4 – SG Leipzig, Judgment of 04.09.2013 – S 17 AS 3292/11
Consideration of income – Calculation of income from self-employment – Business income – Loans –
Guiding principle (author):
Within the framework of basic income support under the German Social Code, Book II (SGB II), business loans to self-employed persons are not to be taken into account as increasing profits (cf. regarding loans the fundamental decision of the Federal Social Court of 17 June 2010 – B 14 AS 46/09 R; Lower Saxony-Bremen State Social Court, judgment of 23 April 2012 – L 9 AS 757/11).
The author has received the judgment; my thanks go to the Social Court of Leipzig.
5. Decisions of the social courts on employment promotion law (SGB III)
5.1 – Dortmund Social Court, Judgment of October 13, 2014 – S 31 AL 573/12 – The appeal is granted.
Commencement of the waiting period in case of late registration
Principle (Author):
If a temporary employee registers as a jobseeker with the employment agency later than three months before the end of their employment, the one-week waiting period for unemployment benefits begins on the day of the late registration. This also applies if the entitlement to unemployment benefits is no longer suspended because unemployment only begins after the waiting period has expired.
Source: Press release Dortmund Social Court of November 11, 2014: sozialgerichtsbarkeit.de
For the full text, see: sozialgerichtsbarkeit.de.
Note:
The Higher Social Court of North Rhine-Westphalia (LSG NRW) held a different view in its judgment of October 20, 2010 – L 16 AL 139/11 – not published, which argued that the waiting period only begins with the commencement of the entitlement to unemployment benefits, because otherwise the insured person would remain without sanction.
6. Decisions of the State Social Courts on Social Assistance (SGB XII)
6.1 – Bavarian State Social Court, Judgment of September 24, 2014 – L 8 SO 95/14
Social Assistance – Moving and Housing Procurement Costs – Execution of the Move – Prior approval is necessary as a prerequisite for cost coverage.
Approval for moving costs can no longer be granted by the social assistance provider if the application for the actual moving costs, including corresponding cost estimates, was submitted only after the move had already taken place. If
notification is made only after the costs have been incurred, coverage is excluded.
Key Principles (Author)
1. The required prior written approval (cf. Section 34 SGB X) must be given before the point in time at which the costs reimbursable under Section 35 Paragraph 2 Sentence 5 SGB XII are legally established, i.e., before the conclusion of a contract with a moving company.
2. If notification is made only after the costs have been incurred, coverage is excluded. Problematic cases arise when the notification is submitted on time, but the social welfare agency fails to decide on the assumption of costs in a timely manner or unlawfully refuses approval. In such cases, the recipient of assistance can be entitled to reimbursement of costs, at least in those instances where the social welfare agency would have been obligated to grant approval due to a reduction of discretion to zero.
Source: socialcourtsability.de
Note:
Social Court Detmold, decision of 17 October 2014 – S 8 SO 237/14 ER, shares the same opinion; regarding SGB II § 22 para. 6: Federal Social Court, judgment of 6 August 2014 – B 4 AS 37/13 R; left open by Federal Social Court, judgment of 15 November 2012 – B 8 SO 25/11 R
6.2 – LSG Lower Saxony-Bremen, Judgment of July 29, 2014 (Case No.: L 8 SO 393/10 KL):
Guiding principles of Dr. Manfred Hammel
1. An arbitration agreement constitutes a contract-forming administrative act within the meaning of Section 31 Sentence 1 of the German Social Code, Book X (SGB X), which is subject only to limited judicial review.
2. By law (§ 80 para. 2 and 3 SGB XII), the arbitration boards have a special prerogative of assessment within the framework of reviewing the contents of an agreement pursuant to § 75 para. 3 SGB XII – and here specifically with regard to the concretization of the indeterminate legal concepts of economic efficiency, economy and capacity to perform (§ 75 para. 3 sentence 2 SGB XII).
3. However, a ruling made by an arbitration panel is unlawful if it was reached through a flawed procedure.
4. A determination of remuneration made by the arbitration board pursuant to Section 77 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII), presupposes and builds upon a service agreement already concluded pursuant to Section 75 Paragraph 3 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 76 Paragraph 2 of the German Social Code, Book XII (SGB XII), in the same way as a remuneration agreement pursuant to Section 75 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII) in conjunction with Section 76 Paragraph 1 of the German Social Code, Book XII (SGB XII).
5. Accordingly, an arbitration panel is neither authorized to independently determine the services of the institution that are relevant for remuneration, nor to independently set the remuneration without a prior determination of the relevant services.
6. If the contracting parties cannot agree on the service agreement pursuant to Section 76 Paragraph 1 of the German Social Code, Book XII (SGB XII), they must appeal directly to the Social Court.
6.3 – North Rhine-Westphalia State Social Court, Judgment of 13 October 2014 – L 20 SO 20/13
There is no entitlement to benefits in the form of a grant or a loan – the property is marketable – undivided community of heirs – rental – risk of suicide
Guiding Principles (Author)
1. There are no legal or factual obstacles to the realization of the inheritance share. As long as the undivided community of heirs continues to exist, the applicant can, in principle, realize her share by selling it – in particular to her brother who is willing to purchase it – or by pledging it (cf. regarding these realization options, Federal Social Court, judgment of January 27, 2009 – B 14 AS 42/07 R). Furthermore, she also had and still has the option of demanding a partition of the estate pursuant to Sections 2042 et seq. of the German Civil Code (BGB).
2. The letting of part of the living space does not restrict its fundamental usability (as already stated in the Senate's judgment of 05.05.2014 – L 20 SO 58/13-).
3. However, if a person in need of assistance is not interested in the settlement of an estate and has not seriously asserted their right to settlement, there is no actual obstacle to realization from the outset.
Source: socialcourtsability.de
Note:
See LSG NRW, judgment of 05.05.2014 – L 20 SO 58/13 – pending before the BSG under file number B 8 SO 12/14 R – owner-occupied house property – appropriateness – consideration of the total area despite partial letting – no asset deduction despite exceeding the appropriate living space
7. Commentary on: Jena Higher Regional Court, 1st Senate for Family Matters, Decision of July 4, 2014 – 1 UF 71/14 –
Author: Klaus Mleczko, Attorney at Law, Notary Public, Specialist Attorney for Family Law and Specialist Attorney for Social Law – Source: jurisPR-FamR 23/2014 Note 1
Authority to represent the minor child in claiming basic income support benefits during the period of visitation rights
Guiding principles
1. Section 38, paragraph 2 of the German Social Code, Book II (SGB II) governs the authority to represent a child in asserting claims arising from a temporary household with the parent entitled to visitation rights in administrative proceedings, which also include objection proceedings. It does not, however, authorize the filing of a lawsuit.
2. Section 1628 of the German Civil Code (BGB), on the other hand, is applicable insofar as the custodial parent refuses to grant permission for the conduct of ongoing legal proceedings before the Social Court.
3. Section 1628 of the German Civil Code (BGB) is to be interpreted restrictively and limited to situational decisions. The delegation of decision-making power is therefore limited to the specifically named first-instance proceedings.
Source: Juris: www.juris.de
8. Claudius Voigt, GGUA: Brochure “Healthcare for EU Citizens”
Dear colleagues,
today the brochure “Access to the Healthcare System for EU Citizens,” published by the DPWV (German Parity Welfare Association), was released. It can be accessed here:
ggua.de (pdf)
9. Claudius Voigt, GGUA: Overview: Working with Tolerated Stay and Temporary Residence Permits
Dear colleagues,
following the recent implementation of several changes to labor market access for individuals with tolerated stay and temporary residence permits, I have attempted to summarize the now applicable regulations as clearly as possible in a two-page table. This can be accessed here:
ggua.de (pdf)
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
