1. Decisions of the Federal Social Court of 02.12.2014 on basic income support for job seekers (SGB II)
1.1 – Federal Social Court (BSG), Judgment of 02.12.2014 – B 14 AS 50/13 R
If the sanction against a member of the household is linked to the loss of benefits for accommodation expenses, this can justify a deviation from the “per capita principle” and higher benefits for accommodation costs to the other members of the household (BSG, Judgment of 23. 5. 2013 – B 4 AS 67 /12 R).
Guiding principles (author)
1. However, a prerequisite for a deviation from the head share principle is that the sanctioned third party has no income or assets from which he can provide his head share – or possibly parts thereof.
2. The parents living in the same household must use the adjusted child benefit of the adult person subject to sanctions to pay their share of the accommodation costs.
Source: juris.bundessozialgericht.de
Note:
See also attorney Thorsten Blaufelder – No collective punishment in Hartz IV sanctions!
Read more: www.jurablogs.com
1.2 – BSG, Judgment of 02.12.2014 – B 14 AS 66/13 R
No exclusion from SGB II benefits for stays in rehabilitation clinics of less than six months – The decisive factor for the start of the period of § 7 para. 4 sentence 3 no. 1 SGB II is a prognosis decision, which must be made from the time of admission to the inpatient facility.
Principle (Author)
1. The placement was not intended to last less than six months. The decisive factor for the prognosis to be made is the date of admission to the clinic and not the date of application for benefits under the German Social Code, Book II (SGB II).
2. Whether the exclusion of benefits under Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) applies or does not apply in exceptional cases can only be assessed uniformly for the expected duration of the stay and therefore only from the perspective of admission to the hospital; a revival of an initially excluded claim due to a hospital stay expected to last at least six months through a subsequent application is incompatible with the purpose of the provision.
Source: juris.bundessozialgericht.de
Note:
See also LSG Rheinland-Pfalz, judgment of 18.12.2008 – L 5 AS 31/08.
1.3 – BSG, Judgment of 02.12.2014 – B 14 AS 35/13 R
To assess whether someone was accommodated in an inpatient facility within the meaning of Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), it is no longer necessary to adhere to the criteria that the case law on Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) in its original version of January 1, 2005, had developed regarding the so-called "functional concept of an institution".
Principle (Author):
Since August 1, 2006, a stay in an inpatient facility excludes benefits under the German Social Code, Book II (SGB II), if the operator of the facility assumes overall responsibility for the daily life and integration of the person in need of assistance according to its concept (Federal Social Court, Judgment of June 5, 2014 – B 4 AS 32/13 R).
Source: juris.bundessocialgericht.de
1.4 – BSG, Judgment of 02.12.2014 – B 14 AS 8/13 R
Possession of a residence permit pursuant to Section 25 Paragraph 5 of the Residence Act excludes entitlement to benefits under the Social Code Book II.
Guiding principle (author):
The legislature is constitutionally free to choose the benefit system used to meet the need for subsistence-level benefits. The fact that foreigners, even after many years of residence in Germany, may be assigned to the Asylum Seekers' Benefits Act (AsylbLG) benefit system and thus be reliant on reduced benefits, must be accepted temporarily, taking into account the transitional arrangement ordered by the Federal Constitutional Court in its judgment of July 18, 2012, until the benefits under the AsylbLG are reorganized.
Source: juris.bundessocialgericht.de
1.5 – Federal Social Court, Judgment of 02.12.2014 – B 14 AS 60/13 R
Social law administrative procedure – Reimbursement of costs in preliminary proceedings – Rejection of the cost invoice of the authorized lawyer by the authority due to the lack of an invoice to his client – Scope of application of Section 10 RVG
Principle (Author)
1. The protective purpose of Section 10 RVG only concerns the internal relationship between client and lawyer, but not the external relationship towards a third party liable for reimbursement.
2. The social security provider under the German Social Code, Book II (SGB II), must also reimburse the lawyer's costs if the lawyer has not issued an invoice to his client.
Source: juris.bundessocialgericht.de
Note:
See also the article by attorney Helge Hildebrandt – Jobcenter must reimburse lawyer's fees even if the lawyer has not issued an invoice to their client: sozialberatung-kiel.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Lower Saxony-Bremen, decision of 28 November 2014 – L 15 AS 338/14 B ER
Basic income support for job seekers – sanction – reduction of payment entitlement – necessity of a cancellation decision
Principle (Juris):
Even after the entry into force of the newly formulated provisions in §§ 31 ff. SGB II on 1 April 2011, a revocation decision pursuant to § 48 SGB X is still required if a reduction of the benefit already granted is to take place due to a breach of duty.
Source: www.rechtsprachung.niedersachsen.de
2.2 – Lower Saxony-Bremen State Social Court, 15th Senate, Judgment of November 13, 2014 – L 15 AS 166/13 – Appeal on points of law is granted.
Basic income support for job seekers – Income – Partner in a civil-law partnership
Income assessment for a partner in a GbR (German civil-law partnership) under the German Social Code, Book II (SGB II) -
Guiding principles (Author)
1. The income from a business operated as a GbR cannot simply be attributed to the benefit recipient as their own income.
2. Section 3 of the Second Book of the Social Code (SGB II) refers to the sole proprietor who can use the remaining business income after deducting business expenses without legal restrictions to cover their own living expenses. This provision does not provide a basis for attributing the income of a civil-law partnership to a partner as their own income without regard to civil law norms, i.e., for determining income as if they were a sole proprietor (see also the decision of the Saxon State Social Court of April 16, 2013 – L 3 AS 1311/12 B ER).
Source: www.rechtsprechung.niedersachsen.de
2.3 – Lower Saxony-Bremen State Social Court, Judgment of 13 November 2014 – L 15 AS 457/12
Basic income support for job seekers – Consideration of income – Disability trust – Release by the executor
Principles (Juris)
In the case of a restriction on the disposal of the person in need of assistance resulting from an appointed executorship of the will, the income from an inheritance must be taken into account insofar as the person in need actually receives funds from the inheritance due to a release by the executor and can use them to cover their needs.
Source: www.rechtsprachung.niedersachsen.de
Note:
See Hessian State Social Court, judgment of 26 June 2013 – L 6 SO 165/10 – If the executor appointed on the basis of a so-called special needs trust releases assets by transferring them to the account of the disabled person, the social welfare agency responsible for providing benefits under Section 19 Paragraph 3 of the German Social Code, Book XII (SGB XII) can access these assets within the limits of Section 90 of the SGB XII.
2.4 – State Social Court of Saxony-Anhalt, decision of 13 October 2014 – L 4 AS 448/14 B ER
Basic income support for job seekers – request to apply for priority benefits – early retirement pension after reaching age 63 – discretionary decision – no unfairness or undue hardship
Guiding principles (author):
1. The applicant was obliged to claim an old-age pension early, because the job center had recognized the necessary discretionary decision and exercised this discretion in accordance with the meaning and purpose of Section 12a SGB II.
2. It remains open whether, in addition to the cases expressly regulated in the Hardship Ordinance, further categories of cases in which early retirement might constitute a particular hardship for the person concerned can be taken into account within the framework of Section 12a Sentence 2 No. 1 of the German Social Code, Book II (SGB II). In any case, neither the Hardship Ordinance nor any possible atypical circumstances outside the scope of the Hardship Ordinance provide grounds that could have justified a particular hardship.
3. Section 12a of the German Social Code, Book II (SGB II) is not unconstitutional.
Source: socialcourtsability.de
Note:
Similar result in LSG Saxony-Anhalt, decision of 19.08.2014 – L 4 AS 159/14 B ER.
2.5 – LSG Berlin-Brandenburg, decision of November 14, 2014 (Case No.: L 14 AS 2799/14 B ER):
Headnotes by Dr. Manfred Hammel
If a social court, by way of preliminary legal protection, has ordered an SGB II provider to pay unemployment benefit II, the question of whether this beneficiary can ultimately and legally claim this assistance may have to be clarified in the main proceedings, unless the official rejection decision becomes legally binding anyway.
However, this aspect cannot be addressed further within the preliminary injunction proceedings.
2.6 – North Rhine-Westphalia State Social Court, decision of 26 November 2014 – L 12 AS 1959/14 B ER – legally binding
Preliminary legal protection – unemployment benefit II – accommodation costs – prior assurance of new accommodation – lack of grounds for an order – the newly occupied apartment has already been handed over.
Guiding principles (author)
: 1. No entitlement to approval of cost coverage before relocation in expedited proceedings.
2. Approval of the move is not a prerequisite for the future assumption of higher costs for the new apartment. If the move is necessary within the meaning of Section 22 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), and the costs of the new accommodation are reasonable, these costs must be covered by the benefits provider even if prior approval of the move has not been obtained. While the intention behind the requirement for approval is to achieve planning certainty that the new apartment will be deemed reasonable and its costs will therefore be permanently and fully covered by the benefits provider, such certainty cannot be achieved through a decision in expedited proceedings, which is only provisional.
Source: socialcourtsability.de
Note:
Same opinion – LSG NRW decisions of 27.09.2012, L 12 AS 1350/12 B ER, of 17.01.2011, L 6 AS 1914/10 B ER, of 22.02.2013, L 2 AS 2299/12 B.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Braunschweig, Judgment of 23.09.2014 – S 49 AS 582/12 – The appeal is admitted.
Credits from operating cost payments are not to be considered as income of the basic income support recipient when offsetting them against counterclaims by the landlord (contrary to LSG Berlin-Brandenburg; judgment of 12.06.2014 – L 23 SO 68/12 -).
Guiding Principles (Author)
1. In both utility bill statements, the landlord already stated that she would offset any credit balance against any outstanding rent. Thus, the landlord unilaterally declared the offsetting of the credit balance against the existing rent arrears at that time, in accordance with Section 388 of the German Civil Code (BGB).
2. In a comparable case, the Berlin-Brandenburg Higher Social Court (LSG Berlin-Brandenburg) recently ruled (judgment of June 12, 2014 – L 23 SO 68/12) that a landlord's declaration of set-off is void in such cases pursuant to Section 394 of the German Civil Code (BGB). The LSG concluded that the benefit recipient could have realized the credit balance and could have successfully challenged the landlord's set-off in civil proceedings. Therefore, the credit balance must be considered as income.
3. The Higher Social Court (LSG) disregards both factual circumstances, such as the requirements for paying court fees and drafting a statement of claim and a claim, and the fact that civil court proceedings also take time. Against this background, it seems unacceptable to burden a recipient of benefits under Book II of the German Social Code (SGB II) with the risk of litigation while simultaneously facing insufficient coverage of their basic needs. A potential claim for payment against a landlord is not sufficient to cover daily living expenses.
Source: www.rechtsprachung.niedersachsen.de
3.2 – SG Berlin, decision of 20.11.2014 – S 205 AS 24714/14 ER
Reduction of unemployment benefit II – Section 32 Paragraph 1 Sentence 1 SGB II – Failure to appear for the appointment – no incidental review of the legality of the appointment request
Guiding principles (author)
1. The summons to report is an administrative act (BSG, decision of 19.12.2011 – B 14 AS 146/11 B).
2. Section 32 paragraph 1 sentence 1 of the German Social Code, Book II (SGB II) does not itself prescribe an incidental review. The only requirement is that the benefit recipient fails to comply with a summons to report.
3. The wording of the provision does not even suggest that the summons to report must be lawful. It therefore adheres to the general rule of administrative law that an administrative act is effective and has legal force regardless of its legality, provided it is not void (§ 39 para. 3 SGB X) and as long as and to the extent that it has not been withdrawn, revoked, otherwise rescinded, or rendered moot by the passage of time or in any other way (§ 39 para. 2 SGB X). Even if the application for an order suspending the effect of the objection were to be seen as a tacit request for review within the meaning of § 44 SGB X, this does not alter the existing binding effect of the summons to report, because it is at the discretion of the respondent whether to rescind it (cf. § 44 para. 2 sentence 2 SGB X).
The decision is available to the author.
Attorney Kay Füßlein comments:
According to established case law (Bavarian State Social Court, judgment of May 31, 2005 – L 10 AL 14/05), a summons to report becomes moot upon the passage of time; it then ceases to have any legal effect, § 39 para. 2 SGB X (German Social Code, Book X). Consequently, according to this case law, the binding effect under § 77 SGG (German Social Court Act) also lapses, so that the legality of the summons can again be reviewed incidentally. This also makes more sense from a procedural perspective: All legal remedies against the summons become moot upon the passage of time on the day of the summons; proceedings would have to be conducted as a declaratory judgment action, which is only admissible if there is no more "relevant" administrative act (here, the sanction).
In light of this case law, it is now advisable to file an appeal against the summons and subsequently also against the sanction as a precautionary measure. Things get interesting when the adjudicating body that decides on the legality of the reporting requirement believes that it has become moot due to the passage of time and dismisses the lawsuit, while the aforementioned case law is applied in the sanction proceedings – then the reporting requirement would be legally binding and the sanction lawful, without the reporting requirement having been legally reviewed at all.
3.3 – Social Court Detmold, Judgment of 17 October 2014 – S 23 AS 2298/12 – legally binding
At the one-year deadline
Guiding principle (author):
The new regulation of Section 40 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), which shortened the review period for benefits under the SGB II to one year, is constitutional.
Source: socialcourtsability.de
3.4 – Gießen Social Court, decision of 28 November 2014 – S 25 AS 859/14 ER
The Gießen district's concept regarding accommodation costs is inconclusive
Guiding Principles (Author)
1. According to the case law of the Federal Social Court, such a concept must be coherent. However, the calculation carried out in the concept was flawed (contra Hessian State Social Court of November 6, 2013 – L 4 SO 166/13 B ER).
2. The job center's data did not reflect the full spectrum of available housing, from basic to high-end standards. This distorted the result. Furthermore, the job center was only able to present the applicant with two suitable housing offers over a ten-month period. This demonstrates that the determination of reasonable costs using the existing approach was unsuccessful.
3. The job center must therefore continue to pay the woman the accommodation costs that were granted before the reduction for an initial period of three months.
Press release dated December 1, 2014: www.sg-giessen.justiz.hessen.de
Full text here: sozialgerichtsbarkeit.de
Note:
See Hessian State Social Court, decision of November 6, 2013 – L 4 SO 166/13 B ER – legally binding – The Hessian State Social Court expressly recognized the conclusive concept developed by Analyse & Konzepte for the district of Gießen (as of December 1, 2012) as conclusive in a second-instance decision (ER procedure). The article can be accessed at: www.analyse & konzepte.de, here is the link: https://www.analyse-konzepte.de
3.5 – Stuttgart Social Court, decision of 28 November 2014 – S 4 AS 6236/14 ER
The benefit recipient has no right to demand that a support person is exempt from showing identification. The job center can request the name and personal details of support persons at any time and, if necessary, terminate a meeting if the support person fails to comply with the identification requirement.
Guiding principle (author)
: The job center is entitled to collect personal details from a support person and to have them present their identification.
Source: socialcourtsability.de
3.6 – Social Court Kassel, Judgment of 13 October 2014 – S 3 AS 762/11
Psychosocial support services during a stay in a women's shelter can be considered integration services under the German Social Code, Book II (SGB II).
Principle (Juris):
In Hesse, the amount of the reimbursement obligation of the municipal authority of the municipality of origin is generally determined on the basis of the cost calculations of the women's shelters, which form the basis of the service and remuneration agreements.
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB X II)
4.1 – SG Braunschweig, decision of 03.11.2014 – S 32 SO 124/14 ER
Turkish nationals are entitled to provisional basic income support benefits for the elderly and those with reduced earning capacity under Chapter Four of the German Social Code, Book XII (SGB XII), without consideration of accommodation and heating costs, as well as assistance in case of illness under Section 48 of the SGB XII.
Guiding Principles (Author)
1. The applicant's claim to benefits under Chapter Four of the German Social Code, Book XII (SGB XII) is not precluded by Section 23 Paragraph 3 Sentence 1 of the SGB XII, according to which foreigners and their family members who have entered the country to obtain social assistance or whose right of residence is solely for the purpose of seeking employment are not entitled to social assistance. These exclusions from benefits are not applicable to nationals of the signatory states of the European Financial Equalization (EFA), which include Turkey and the Federal Republic of Germany (as well as Belgium, Denmark, Estonia, France, Greece, Ireland, Iceland, Italy, Luxembourg, Malta, the Netherlands, Norway, Portugal, Sweden, Spain, and the United Kingdom), due to the principle of equal treatment under Article 1 of the EFA.
2. However, the exclusion of benefits under Section 23 Paragraph 3 Sentence 1 Alternative 1 of the German Social Code, Book XII (entry for the purpose of receiving social assistance) is also not applicable to foreigners who can invoke the principle of equal treatment under Article 1 of the EFA (see Lower Saxony-Bremen Higher Social Court decision of May 23, 2014 – L 8 SO 129/14 B ER –), because the wording of Article 1 of the EFA does not provide a legally convincing basis for the conclusion that the EFA should only apply to those foreigners who were already lawfully residing in the state for which assistance was sought at the time they became in need of assistance, and not to those who entered a state as already needy persons or for the purpose of obtaining social assistance benefits.
Source: www.rechtsprachung.niedersachsen.de
4.2 – Social Court Detmold, Judgment of 28 October 2014 – S 8 SO 46/13
In order to ensure mobility for participation in retraining, disabled recipients of ALG II (unemployment benefit II) are entitled to benefits for participation in working life for the purchase of a vehicle with an automatic transmission.
Guiding Principles (Author):
The legal basis for the claimed motor vehicle assistance is Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) in conjunction with Sections 112 et seq. of the German Social Code, Book III (SGB III) in conjunction with Section 33 Paragraph 3 No. 6, Paragraph 8 No. 1 of the German Social Code, Book IX (SGB IX) in conjunction with the Motor Vehicle Assistance Ordinance (KfzHV). The benefit sought by the applicant is a benefit for participation in working life within the meaning of Section 5 No. 2 of the German Social Code, Book IX (SGB IX), as distinct from benefits for participation in community life pursuant to Section 5 No. 4 of the German Social Code, Book IX (SGB IX), because the main focus of the benefit for the applicant is on securing and maintaining employment opportunities.
Source: socialcourtsability.de
4.3 – Social Court Detmold, Judgment of 23.09.2014 – S 2 SO 12/12
The social welfare provider is not required to cover funeral expenses within the meaning of Section 74 of the German Social Code, Book XII (SGB XII) for the applicant, because her claim was time-barred under Section 45 Paragraph 1 of the German Social Code, Book I (SGB I).
Guiding principles (author)
1. The claim for social assistance coverage of funeral costs was also not suspended or interrupted by the administrative court proceedings in which the plaintiff challenged the regulatory obligation to arrange a funeral and the resulting obligation to bear the costs.
2. This follows from the fact that the claim for reimbursement of funeral expenses and the challenge to the police-mandated duty to arrange a funeral are two distinct legal issues. Furthermore, none of the circumstances listed in Sections 203 and 204 of the German Civil Code (BGB) apply.
Source: socialcourtsability.de
4.4 – Social Court Detmold, Judgment of 28 October 2014 – S 2 SO 103/12
The social welfare provider was to be obliged to grant the applicant integration assistance in the form of an integration aide, also for the period of afternoon care beyond the compulsory lessons in the morning, within the framework of attending a secondary school in the lower secondary level.
Guiding Principles (Author)
1. The costs for an integration aide for the afternoon hours, comparable to the open all-day school in primary school (hereinafter: OGS), constitute assistance for appropriate schooling within the meaning of Section 53 Paragraph 1 No. 1 of the German Social Code, Book XII (SGB XII). This is evident from the interpretation of this provision, particularly in light of the decision of the Federal Social Court of March 22, 2012, in case B 8 SO 30/10 R.
2. The concept of schooling is to be interpreted broadly for children with disabilities. However, it is essential that the support provided in question includes measures that facilitate school attendance or make it possible in the first place (see Schleswig-Holstein Higher Social Court, judgment of October 6, 2008, case no.: L 9 SO 8/08). The starting point is that the support is specifically tailored to the school-related measures and leads to a certain level of schooling that is yet to be achieved. There must be a predominant connection to school education. It is not sufficient that a measure may have positive side effects on academic development.
Source: socialcourtsability.de
5. On the applicability of Section 66 of the German Social Code, Book I (SGB I) in the German Social Code, Book II (SGB II) (and Book XII (SGB XII)), an article by Herbert Masslau.
Read the article here: www.herbertmasslau.de
6. 4.12.2014: Federal social law allows two appeals on the topic of "rent ceiling" in the law on basic income support.
Today, December 4, 2014, we received two decisions dated November 18, 2014 (B 4 AS 117/14 B and B 4 AS 118/14 B) by which the Federal Social Court (BSG) has granted leave to appeal. In our appeal against the denial of leave to appeal, we raised the following four legal questions of fundamental importance:
Read more about social law in Freiburg – Lawyers Fritz and colleagues: www.sozialrecht-in-freiburg.de
7. 5.12.2014: Münster Administrative Court questions the compatibility of the recent tightening of asylum law with the German Basic Law
. Immigration law is not one of the main areas of focus for our law firm. Nevertheless, we would like to draw attention today to a noteworthy decision by the Münster Administrative Court. In its decision of November 27, 2014, 4 L 867/14.A, the Münster Administrative Court granted an application for a preliminary injunction and ordered the suspension of a deportation order. In its decision, the court expresses sound reasoning as to whether the classification of Serbia as a safe country of origin is compatible with the fundamental right to asylum and announces that it will examine in the main proceedings whether the question should be referred to the Federal Constitutional Court.
Read more about social law in Freiburg – Lawyers Fritz and colleagues: www.sozialrecht-in-freiburg.de
8. Following an inquiry from the Left Party – Cologne Job Center corrects incorrect practice
The Cologne job center will in future refrain from issuing standard rent certificates when applying for benefits under the Second Social Code (Hartz IV).
Read more: www.berthold-bronisz.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
