1. Decisions of the Federal Social Court of December 17, 2014 on social assistance (SGB XII)
1.1 - BSG, judgment of December 17, 2014 - B 8 SO 15/13 R
Social assistance - accommodation costs - assurance - moving costs
Guiding principle (author)
There is no right to consent to the moving costs without there being a specific offer of accommodation.
Source: BSG – Deadline Report No. 64/14: juris.bundessocialgericht.de
Note:
Also on SGB II: BSG, judgment of April 6, 2011, B 4 AS 5/10 R -.
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - Bavarian State Social Court, decision of November 27, 2014 - L 17 AS 743/14 B ER
Reduction in unemployment benefit II – sanction notice – failure to revoke the approval notice – expedited procedure
With regard to the above-mentioned highest court case law, it is already clear, at least with the degree of conviction required in expedited proceedings, that in addition to the sanction decision, the approval decision must always be revoked.
In any case, any doubts that arise due to the new version of Section 31b SGB 2 do not mean that the preponderance of probability that can only be required in expedited proceedings does not exist. Guiding principles (author)
In addition to the sanction notice, the approval decision must always be revoked (cf. on the requirement for revocation BSG of December 17, 2009, B 4 AS 30/09 R and of December 15, 2010, B 14 AS 92/09 R; technical Information from the Federal Agency on §§ 31, 31a, 31b SGB II, p. 7, www.arbeitsagentur.de , “Publications-Instructions-Basic Security”; otherwise LSG Bavaria, judgment of January 30, 2014, L 7 AS 84/13; see also LSG Niedersachsen-Bremen, decision of February 10, 2014, L 7 AS 1058/13 B).
Source: Sozialgerichtsbaren.de
Note:
See also current: Repeal and legal consequences of sanctions, SGB II, Dr. Stefan Treichel, SGb 2014, 644
2.2 - Saxon State Social Court, judgment of July 16, 2014 - L 8 AS 1148/12
Basic security for job seekers - claims to information from those liable for maintenance - no right to information if the application for benefits is definitively rejected, no benefit is received and no membership in the community of needs.
Basic security providers according to SGB II are not allowed to call on the father to provide information because the son did not receive any benefits according to SGB II.
Guiding principle (author)
Since the son neither received benefits according to SGB II nor was he a member of his mother's community of needs - which received basic social security benefits according to SGB II - there is no right to information according to Section 60 Paragraph 2 SGB II (cf LSG Baden-Württemberg judgment of September 27, 2011, L 13 AS 4950/10).
Source: socialcourtsability.de
2.3 - Hamburg State Social Court, decision of December 1, 2014 - L 4 AS 444/14 BER - legally binding
British citizens are excluded from these benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II because their right of residence is based solely on the purpose of job search can result.
Guiding principles (Juris)
1. Section 7 Paragraph 1 Sentence 1 No. 2 SGB II also covers EU citizens without a material right of residence; especially those who don't have a job and aren't actively looking for one.
2. Under European law, there are no objections to Section 7 Paragraph 1 Sentence 1 No. 2 SGB II as far as EU citizens without a material right of residence are concerned. This has now been clarified with the ECJ decision of November 11, 2014 (C-333/13 “Dano”). In this respect, the Senate is abandoning its previous jurisprudence of weighing up the consequences.
3. It was not necessary to decide on the compatibility under European law of Section 7 Paragraph 1 Sentence 1 No. 2 SGB II with regard to EU citizens who have a material right of residence due to the search for work.
4. As a British citizen, the applicant enjoys the rights under the European Welfare Agreement. With regard to claims under SGB II, the Federal Republic has declared a reservation here; However, this does not exclude possible claims for benefits according to SGB XII.
Source: socialcourtsability.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 - SG Hamburg, decision of December 12, 2014 - S 34 AS 4222/14 ER - unpublished
Basic security for job seekers - refusal of medical assessments - violation of obligations to cooperate according to Section 62 SGB I - withdrawal of benefits according to Section 66 SGB 1 - no displacement by Section 44a SGB 2
Arriving without a word at the examination appointment justifies the complete denial of ALG II according to Section 66 SGB I.
Guiding principles (author)
1. If the benefit recipient fundamentally refuses to answer the questions of the doctor being examined, the SGB II service provider is entitled to issue a decision in accordance with Section 66 SGB I.
2. Appearing at an examination appointment is not sufficient for cooperation. Rather, only those who provide the necessary cooperation will be subject to an investigation. Answering questions about ability to work is part of the required cooperation. When assessing the ability to work, it is also important whether the applicant feels or experiences being unable to work.
3. By refusing to provide information in this regard, the applicant has violated her obligation to cooperate in accordance with Section 62 SGB I.
4. Section 66 SGB I is applicable in the area of livelihood security and in particular is not called into question by Section 44a Paragraphs 1 to 3 SGB II. The seamless regulation in Section 44a Paragraphs 1 to 3 SGB II is intended to ensure that living benefits for those in need of help are not rejected by both providers due to different arguments by the SGB II provider on the one hand and the SGB XII provider on the other: This JC because of lack of earning capacity, social assistance because of existing earning capacity. However, the provision does not serve to enable a person in need of assistance to evade reasonable cooperation in determining their ability to work before the clarification procedure and at the same time to be able to refer to the JC's obligation to provide benefits in accordance with Section 44a Paragraph 1 Sentence 7 SGB II. Section 44a Paragraph 1 SGB II is not intended to undermine any reasonable acts of cooperation (cf. Bay. LSG, decision of August 31, 2012 - L 7 AS 601/12 B ER).
Note:
Same opinion – LSG Bayern, decision of. June 11, 2013, L 16 AS 178/13 B ER - No participation in psychological examination -> result in discontinuation of services according to § 66 SGB I. Similar - SG Kassel, decision of March 31, 2014, S 6 AS 46/14 ER - The obligation to cooperate §§ 60 ff. SGB I also apply in the area of basic security for job seekers. If the beneficiary fundamentally refuses to take part in a medical assessment and to give consent for the assessment of the performance capacity to be forwarded to the SGB II service provider, the SGB II service provider is entitled to issue a decision in accordance with Section 66 SGB I. And SG Heilbronn, court decision of October 31, 2013 (ref.: S 7 AS 1838/13 - not legally binding - not published): For the immediate and complete refusal of the continued granting of Alg II in accordance with Section 66 Paragraph 1 Sentence 1 SGB I, because the benefit recipient neither attended a medical examination to determine her continued ability to work (Section 8 Paragraph 1 SGB II) nor consented to the disclosure of existing medical reports about her to the job center.
Different opinion: LSG Baden-Württemberg, decision of June 2, 2014 - L 12 AS 5220/13 ER, unpublished - If the SGB II provider only has the ability to work in accordance with Section 7 Paragraph 1 Sentence 1 No. 2 SGB II in If the connection with Section 8 Para. 1 SGB II is in doubt, Section 44a Para. 1 Sentence 7 SGB II, which regulates the provisional provision of services, applies. And SG Frankfurt am Main, resolution of January 20, 2014 - S 26 AS 1455/13 ER, unpublished - Die Application of SGB I (§ 60 SGB I) in the event of refusal to attend a medical or psychological examination appointment is excluded (referring to LSG Hessen, decision of June 22, 2011 - L 7 AS 700/10 B ER).
3.2 - SG Berlin, judgment of September 26, 2014 - S 37 AS 26238/13 - unpublished
For additional payment of operating and heating costs above the job center's adequacy limit.
The job center must “despite the cost reduction in accommodation and heating requirements” based on the guidelines of the AV-Wohnen applied until April 30, 2012 and the WAV in force since May 2012, the additional payment of operating and heating costs above the adequacy limit of the job center as an appropriate, downstream KdU- assume requirements.
Guiding principles (author)
1. Although the current approvals with the reduced values became final, the benefit recipient can claim an increased KdU requirement in accordance with Section 48 Paragraph 1 Sentence 2 No. 1 SGB X for the month in which the additional claim amount is due claim and in the event of a dispute it must be checked which needs are appropriate regardless of the previous, ongoing payments in that month.
2. A distinction must be made here between cold operating costs and heating costs because the WAV's gross concept was rejected by the BSG as inconclusive and, according to the product theory, accommodation and heating costs must be examined separately for appropriateness.
3. The Berlin rent index is not a reliable data source. In addition to the rapid price increases on the Berlin housing market that are “overtaking” the respective rent index data, a BGH ruling of November 6, 2013 - VIII ZR 346/12 on a rent level requirement shows that the 2009 rent index is unsuitable for prices for apartments in simple residential areas (according to the rent index) to be adequately represented.
4. Since an abstract limitation is made that is independent of the individual case and the specific circumstances in the comparison area, the respective maximum amount in the table must be used. A “security surcharge” of 10% of the respective table value must be added to this table value (BSG March 22, 2012 – B 4 AS 16/11 R).
5. In the absence of a breakdown of the values in the housing benefit table into basic rent on the one hand and cold operating costs on the other, the entitlement to the assumption of a downstream KdU requirement while capping the ongoing accommodation and heating costs can only be determined in such a way that the total limit value in the accounting year, formed from the housing benefit table value + 10% surcharge plus the maximum values for heating and hot water supply are compared with the costs actually borne by the job center.
6. If the additional claim amount is in the range of the ongoing costs assumed and the total limit value costs, it must be assumed as an appropriate, downstream KdU requirement.
3.3 – Gießen Social Court, judgment of November 5th, 2014 – S 25 AS 980/12 – The appeal is permitted.
On the interpretation of the term decentralized hot water supply - electricity costs of the gas boiler
For the applicant, this means that the costs of heating and water heating in his gas combination boiler are to be borne as heating costs solely in accordance with Section 22 SGB II. There are no objections to the 5% of fuel costs (cf. LSG Baden-Württemberg, judgment of March 25, 2011 - L 12 AS 2402/08 -).
Guiding principle (Juris)
A “decentralized hot water supply” within the meaning of Section 21 Paragraph 7 SGB II only includes devices that heat warm water separately, ie not in a device with the heater.
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB X II)
4.1 - SG Hamburg, decision of October 20, 2014 - S 20 SO 535/14 ER - unpublished
Deviation from the head part principle for needs-related reasons - SGB
A social welfare recipient is entitled to full rent because the adult daughter living in her household who receives SGB II was denied benefits due to a lack of cooperation.
Guiding principle (author)
1. A deviation from the “head part principle” occurs if benefits according to SGB II that the daughter has received in the past are due to the daughter's lack of cooperation in clarifying her ability to work in accordance with Section 66 Paragraph 3 SGB I bis were refused to be remedied.
2. The daughter's application for benefits under SGB The mother cannot be asked to demand the daughter's share of the rent.
3. This constellation is comparable to the one on which the BSG was based in its judgment of May 23, 2013 - B 4 AS 67/12 R (if the sanction against a member of the community of needs is associated with the loss of benefits for accommodation expenses, this may be a deviation from the “headboard principle” and justify higher payments for accommodation costs to the other community members in need).
4.2 – Stade Social Court, judgment of November 27, 2014 – S 33 SO 65/14
Benefits according to the fourth chapter of SGB
Assets saved from care allowance according to SGB XI are to be used primarily for living expenses.
( author)
Consuming the assets from saved care allowance in excess of the allowance does not constitute hardship within the meaning of Section 90 Paragraph 3
SGB
5. Note on LSG Niedersachsen-Bremen, decision of
11/29/2014 -L 15 AS 338/14 B ER - Sanction: Reduction of the payment claim only after cancellation The practical tip - weigh up the statute of limitations, a contribution by Attorney Corinna Unger, Infobrief SGB II Short messages for practitioners 12/2014
In the information letter of January 2014, the decision of the Altenburg Social Court was already presented, which also reflects this legal opinion. Sometimes the service providers now issue notices in which it is stated that the original decision should be revoked, but no specific notices are mentioned in them, so this “text module” is not enough to reduce the payment entitlement. The possibility of cancellation only exists for one year, so you should not rush into it if necessary; Sanction notices can be reviewed four years retroactively in accordance with Section 44 SGB! It should be noted that an application for an interim order should always be made if interim legal protection is sought in the proceedings.
6. Note on LSG Berlin-Brandenburg, decision of
November 5th, 2014 - L 25 AS 2731/14 B ER - Interim legal protection against “compulsory retirement” The practical tip, an article by Attorney Corinna Unger, Gera, printed in the information letter SGB II short messages for practitioners 12/2014
The service providers still request that an early pension application be drawn up without exercising the discretion that must be observed. The extent to which the submission of a pension application can be reversed by the SGB II benefit provider has so far been controversial. In the present proceedings, the LSG obliged the respondent to withdraw the pension application. The problem of compulsory retirement was already addressed in the information letter SGB II 4/2014. In addition, Caritas has written a very readable statement on the request of the Bundestag faction DIE LINKE to abolish compulsory retirement of those entitled to SGB II benefits (Print 18/589), which explains the problem of compulsory retirement in great detail and clearly.
7. Forced retirement sends the wrong signals
Berlin, December 1st, 2014 // On the occasion of the hearing on the compulsory retirement of the long-term unemployed in the Committee for Labor and Social Affairs, the German Caritas Association is calling for the law to be corrected.
Statement on the motion of the Bundestag faction DIE LINKE - Abolition of compulsory retirement of those entitled to SGB II benefits (printed matter 18/589), here for the statement: www.caritas.de
8. Cancellation and legal consequences of sanctions, SGB II, Dr. Stefan Treichel, SGb 2014, 644
A renewed push by the BMAS to reform the sanction law according to SGB II is currently stirring people's minds. The article addresses a legal problem that could receive attention as part of current reform efforts. A measure of legal certainty should be created for the current legal situation.
I. Introduction
There is currently a dispute in the social justice system as to whether a further cancellation notice in accordance with Section 48 SGB The following article aims to illustrate that the legal problem raised in this context is more complex and branches out into the individual branches of general social administrative procedural law.
Source: www.diesocialgerichtsbaren.de
9. Interim legal protection against administrative integration acts is possible
An article by lawyer Luisa Milazzo, Leipzig:
www.luisa-milazzo.de
Wish you a happy Christmas, that's clear and without question. With the scent of pine trees and candlelight, may everything be beautiful and happy.
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
