1. Decisions of the Federal Social Court of 18 November 2014 on basic income support for job seekers (SGB II)
1.1 – Federal Social Court, Judgment of 18 November 2014 – B 4 AS 3/14 R
Unemployment benefit II – Accommodation and heating – Rent arrears – Loan or grant – Atypical case – Contributory negligence of the basic income support provider
Guiding Principles (Author)
1. A subsidy is only to be granted in atypical cases according to Section 22 Paragraph 8 Sentence 4 of the German Social Code, Book II (SGB II). Such an atypical case exists when the circumstances of the individual case deviate significantly from the (typical) standard case.
2. Contributing misconduct on the part of the administration, which is to be understood as an atypical handling of the case in the sense of a deviation from the generally expected proper case processing, can also establish an atypical nature of the realized offense. In this respect, "significantly contributing" action is required.
3. The head share principle does not apply when a loan-based assumption of rent arrears is cancelled.
4. The rent arrears loan does not have to be repaid during the period of benefit receipt; there is no legal basis for interest charges in the event of late repayment.
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of 28 October 2014 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 28 October 2014 – B 14 AS 65/13 R
Entitlement to social assistance – temporary holiday stay of non-working children living abroad with their eligible parents in Germany – lack of habitual residence in Germany – interpretation in conformity with the constitution
Guiding principle (author):
A habitual residence in Germany is not a prerequisite for entitlement for persons unable to work who live in a temporary household with persons entitled to benefits who are able to work in Germany.
Source: juris.bundessocialgericht.de
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 September 2014 – L 4 AS 637/12
The repair costs of a property fence are not covered as accommodation costs
Guiding Principles (Author):
The erection of a chain-link fence to deter threatened attacks by third parties does not affect the core area of the accommodation and is also not essential for the use of the actual living space. Similar to a gate, a chain-link fence does not belong to the core area of living, but merely to the outdoor area and cannot be allocated to accommodation costs (cf. Lower Saxony-Bremen State Social Court, decision of May 24, 2011, L 13 AS 274/10).
Source: socialcourtsability.de
Note:
The same result was reached by the Higher Social Court of Saxony-Anhalt, decision of 10 May 2012 – L 5 AS 293/11 B.
3.2 – Saxony-Anhalt State Social Court, Judgment of September 24, 2014 – L 4 AS 318/13 – The appeal is granted.
Basic income support for job seekers – Exclusion of benefits in the case of placement in a facility for the execution of judicially ordered deprivation of liberty – Demarcation of juvenile detention as a disciplinary measure
Guiding principle (author):
Juvenile detention pursuant to Section 16 of the Juvenile Courts Act (JGG) is not a judicially ordered deprivation of liberty within the meaning of Section 7 Paragraph 4 Sentence 2 of Book II of the German Social Code (SGB II).
Source: socialcourtsability.de
Note:
See also Social Court Dresden, judgment of 27 January 2014 – S 7 AS 2328/13 and Social Court Gießen, judgment of 1 March 2010, file number S 29 AS 1053/09.
3.3 – State Social Court of Saxony-Anhalt, Judgment of 13 November 2014 – L 5 AS 983/12 – legally binding:
Increase in reasonable accommodation costs due to an unnecessary move – no limitation of benefits to the previous accommodation costs after an interruption of benefit receipt for at least one month
Guiding Principles (Author)
1. The benefit provider cannot rely on the provision of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), if a former benefit recipient had overcome their previous need for assistance due to the generation of income sufficient to cover their needs for at least one month and had ceased receiving benefits (Federal Social Court, Judgment of April 9, 2014, Case No.: B 14 AS 23/13 R).
2. The decisive factor is not the factual situation (non-payment or interruption of benefit receipt), but rather the actual overcoming of the need for assistance through the generation of sufficient earned income and thus the substantive entitlement to benefits. If this entitlement does not exist, the obligations under the German Social Code, Book II (SGB II) cease for the formerly eligible recipient upon ceasing to receive benefits – regardless of whether benefits had previously been granted.
3. Likewise, a short-term, possibly abusive, deregistration from benefit receipt for one month, i.e., a de facto non-receipt of benefits while continued need, does not lead to an interruption of benefit receipt within the meaning of the case law (see judgment of the Senate of 28 February 2013, file no. L 5 AS 369/09).
Source: socialcourtsability.de
Note:
See commentary on: Federal Social Court, 14th Senate, Judgment of April 9, 2014 – B 14 AS 23/13 R – Author: Prof. Dr. Uwe Berlit, Presiding Judge of the Federal Administrative Court: www.juris.de
3.4 – State Social Court of Saxony-Anhalt, decision of 21 January 2015 – L 5 AS 1059/13 B
Regarding the scope of application of Section 330 Paragraph 1 of the German Social Code, Book III (SGB III) in the context of review applications pursuant to Section 44 of the German Social Code, Book X (SGB X)
Guiding Principles (Attorney Michael Loewy):
Within the framework of Section 40 Paragraph 2 No. 2 of the German Social Code, Book II (SGB II) in conjunction with Section 330 Paragraph 1 of the German Social Code, Book III (SGB III), the decisive factor is not the period of entitlement, but rather the issuance of the legally binding administrative act. This follows directly from the unambiguous wording of Section 330 Paragraph 1 of the SGB III (“…because it is based on a legal norm which, after the issuance of the administrative act… has been interpreted differently in established case law than by the Employment Agency.”).
Source: Michael Loewy, Attorney at Law – Specialist in Social Law: anwaltskanzlei-loewy.de
3.5 – Berlin-Brandenburg State Social Court, decision of 26 January 2015 – L 25 AS 3137/14 B PKH – legally binding
Rejection of legal aid – basic income support for job seekers – consideration of income – parental allowance – constitutionality
Guiding principle (author)
1. The consideration of parental allowance as income to reduce the need for basic income support for job seekers is constitutional.
2. If there is no prior income from employment, this incentive effect of parental allowance is eliminated and the payment of parental allowance does not represent a replacement for lost earned income, but rather an income-independent welfare benefit (cf. SG Karlsruhe, decision of March 17, 2014 – S 15 AS 694/14 ER).
Source: socialcourtsability.de
3.6 – North Rhine-Westphalia State Social Court, decision of 26 January 2015 – L 12 AS 2410/14 B ER – legally binding
Unemployment Benefit II – Additional needs – unavoidable ongoing special needs – Costs of exercising visitation rights with a child living separately – Parental separation within the meaning of family law
The father is not entitled to (further) benefits for the costs of a trip to visit his sons in Venezuela.
Guiding Principles (Author)
1. There is no entitlement to additional needs allowances under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for visits to a child living separately from one parent and with the other parent if the parents are separated geographically but not legally in the sense of family law (see Thuringian Higher Social Court, Judgment of March 19, 2014 – L 4 AS 1560/12 – pending before the Federal Social Court under file number B 4 AS 27/14 R).
2. However, ensuring a dignified minimum standard of living does not require the provision of state transfer payments to finance subsequent costs or needs arising from a particular lifestyle choice made by the person in need of assistance (see Thuringian Higher Social Court, Judgment of March 19, 2014 – L 4 AS 1560/12).
3. The visitation rights requested by the applicant do not serve as the sole means of exercising his right of access or custody to his sons, but rather as a temporary means of establishing family life together. In this respect, however, the applicant would be required to achieve this through family reunification by means of his family moving to Germany or him moving back to Venezuela. Article 6 of the Basic Law (GG) does not lead to a different conclusion, as this is primarily a defensive right from which no claims to specific state benefits can be derived (see Lower Saxony-Bremen Higher Social Court, Decision of May 11, 2012 – L 15 AS 341/11 B ER).
Source: socialcourtsability.de
3.7 – North Rhine-Westphalia State Social Court, decision of 21 January 2015 – L 19 AS 2274/14 B – legally binding.
Costs within the meaning of Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) also include unavoidable double rent expenses (contra: Berlin-Brandenburg State Social Court, judgment of 31 January 2013 – L 34 AS 721/11: the legal basis in this respect is Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II)).
Guiding Principles (Author)
1. The applicant's short-term move from her previous apartment without observing the statutory notice period was necessary "for other reasons" within the meaning of Section 22 Paragraph 6 Sentence 2 of the German Social Code, Book II (SGB II). The applicant's move to the mother-and-child facility was objectively necessary at the instigation of the youth welfare office because otherwise there was a risk of her child being taken into care.
2. Even if a claim against the Jobcenter is excluded due to the exclusion from benefits under Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), and the applicant is therefore no longer subject to the benefits regime of SGB II, it must be examined whether they now fall under that of the German Social Code, Book XII (SGB XII). These benefit systems are – in principle – mutually exclusive (and thus alternative), cf. Section 5 Paragraph 2 Sentence 1 SGB II, Section 21 Sentence 1 SGB XII. Employable persons in need of assistance who are excluded from benefits under Section 7 Paragraph 4 SGB II can therefore receive subsistence benefits under SGB XII (cf. Federal Social Court, Judgment of December 12, 2013 – B 8 SO 24/12 R – (regarding the entitlement to the assumption of rent costs during incarceration)).
3. If, due to the applicant's placement in a mother-and-child facility, an entitlement under the German Social Code, Book XII (SGB XII) should also be excluded because, according to Section 10 Paragraph 4 Sentence 1 of the German Social Code, Book VIII (SGB VIII), benefits under the SGB VIII generally take precedence over benefits under the SGB XII, it must finally be examined whether the costs for accommodation and heating should be covered under the SGB VIII – in this respect, Section 19 Paragraph 3 of the SGB VIII is relevant.
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Oldenburg, Judgment of 14 January 2015 – S 42 AS 1737/12 – The appeal is admitted (unpublished)
The Oldenburg Social Court overturns the rent index in Delmenhorst – Hartz IV recipients can demand higher rents – For benefit periods from 2012 onwards, the values to be increased by a flat rate of ten percent according to § 12 WoGG (Housing Benefit Act) are to be applied – Regarding the obligation to review and update a concept based on a qualified rent index according to § 22 para. 1 sentence 1 SGB II (Social Code, Book II)
Guiding principles (author)
1. Even with a concept prepared in accordance with Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), the basic income support provider is obliged to review the reference rents determined therein at least every two years and, if necessary, to update them.
2. The validity of the data underlying a conclusive concept pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is subject to limitations (see Federal Social Court (BSG), judgment of September 10, 2013 – B 4 AS 77/12 R). The SGB II itself does not specify the timeframe and extent to which benefit providers must review the conclusiveness of a concept derived from the data of a qualified rent index pursuant to Section 22 Paragraph 1 SGB II by means of renewed data collection or updating. By invoking Section 22c Paragraph 2 SGB II, it is justified to apply a two-year period analogously, even in cases where housing costs are not determined by municipal bylaws.
3. Because it would not be appropriate to impose different requirements on a municipal statute, for which the data of a qualified rent index can ultimately also be used (cf. Section 22c Paragraph 1 Sentence 1 No. 1 SGB II).
4. If the employable person entitled to benefits is subject to an obligation to reduce costs, the benefits for accommodation under the German Social Code, Book II (SGB II) – in the event of a proven failure of local information resources – are to be limited to the values of the housing benefit table plus a supplement of 10 percent, even under the application of Section 12 of the Housing Benefit Act as amended.
5. For the purposes of income assessment, child benefit for more than two children must be divided equally according to the number of children for whom child benefit is received (LSG NSB, Judgment of 30.01.2013 – L 13 AS 67/11, contra Thüringer LSG, Judgment of 17 April 2014 – L 9 AS 1180/13).
Note 1:
See also: ALG II – Oldenburg Social Court overturns Delmenhorst rent index, a brief commentary by the representing attorney Thomas Kauf: www.rechtsanwalt-kauf.de
Note 2:
The Oldenburg Social Court overturns the rent index in Delmenhorst – Hartz IV recipients can demand higher rents. In the future, the values from the housing benefit table plus 10 percent will apply: One person will then receive €363.00. Two people: €442.20, three people: €526.90, four people: €611.60, five people: €701.80, and €84.70 for each additional person in the household. Read more: www.noz.de
Note 3:
Similarly, judgment of the same day – SG Oldenburg, judgment of 14 January 2015 – S 42 AS 479/12
4.2 – Oldenburg Social Court, Judgment of 14 January 2015 – S 42 AS 479/12 – Appeal allowed
The rent index relevant for basic income support is not a conclusive concept for calculating accommodation costs.
The calculation of housing costs for Hartz IV recipients by the Delmenhorst Job Center for approval periods from January 2012 onwards is not based on a "conclusive" concept.
Principle (Author)
1. The job center would have been obligated to regularly review whether the figures in the concept still accurately and realistically reflect the social reality of the Delmenhorst housing market. The court based its decision on the two-year period applicable to municipal bylaws.
2. According to the case law of the Federal Social Court, in such a case the appropriateness of the costs of accommodation must be determined on the basis of the housing benefit table with a safety margin of 10 percent.
Note:
See also: Press release from the Oldenburg Social Court dated January 29, 2015 – “Rent index relevant to basic income support” not a conclusive concept for calculating accommodation costs
The Social Court has allowed the appeal against this judgment because the question of the review and regular updating of the "basic income support-relevant rent index" by the job center has not yet been clarified by the highest court.
Read more and find the full text of the decision here: www.sozialgericht-oldenburg.niedersachsen.de
4.3 – Social Court Berlin, decision of 15 January 2015 – S 191 AS 115/15 ER
No entitlement to ski equipment for school trip -
Guiding principles (Author)
1. The job center is not required to provide subsidies for ski equipment in expedited proceedings if the applicant applied for the requested benefits three days before the start of the school trip and it would have been possible for the applicant's parents to purchase the equipment on loan by setting aside savings, e.g., from the monthly earned income allowance of approximately €200 available to the applicant's father.
2. Underwear and gloves are items that should be financed from the usual means of the standard allowance, if necessary by saving.
Source: socialcourtsability.de
Note 1:
See LSG NRW, decision of 04.02.2008 – the costs of renting ski equipment with a protective helmet must be covered by the JC according to § 24 para. 3 SGB II.
Note 2:
See also press release Berlin, January 30, 2015 – Social law in everyday life: Hartz IV: No entitlement to ski equipment for the school trip: www.berlin.de
4.4 – SG Stade, decision of 28.01.2015 – S 17 AS 5/15 ER
Knowledge of the legal consequences, instruction on legal consequences, sanction notice – benefits in kind
The sanction notice is unlawful because the sanction requires that written instruction about the legal consequences has been given or that knowledge of them existed.
Guiding Principles (Author)
1. According to Section 31 Paragraph 1 of the German Social Code, Book II (SGB II), breaches of duty can only be sanctioned if benefit recipients violate their obligations despite having received written notification of the legal consequences or being aware of them. In this case, neither was the notification of legal consequences provided in accordance with the legal requirements, nor can the applicant be proven to have been aware of the legal consequences.
2. The statement that the applicant may receive benefits in kind or benefits in kind (§ 31a para. 3 sentence 1 SGB II) upon application is not sufficient (cf. LSG Lower Saxony-Bremen, decision of 21.04.2010 – L 13 AS 100/10 B ER – , para. 5 on the identical predecessor provision § 31 para. 3 sentence 6 SGB 11 aF).
Source: Lawyers Beier & Beier, Gröpelinger Heerstraße 387, 28239 Bremen, full text available here: www.kanzleibeier.eu
4.5 – Social Court Düsseldorf, decision of January 9, 2015 (file no.: S 35 AS 4619/14 ER):
Guiding principles of Dr. Manfred Hammel:
A job center cannot refuse to grant unemployment benefit II on the grounds that the applicant has not submitted a specific document if it is readily possible for the SGB II provider to obtain this document itself (e.g., by requesting a pension statement directly from the statutory pension insurance provider through administrative assistance pursuant to Sections 3 and 4 of the SGB X).
The refusal of benefits due to lack of cooperation in accordance with Sections 60 et seq. of the German Social Code, Book I (SGB I), does not constitute a sanction for an applicant's failure to submit certain documents to the job center, but rather a special legal consequence because a matter cannot be clarified without the cooperation of the person seeking public assistance.
Note:
See LSG NRW, decision of 10.02.2014 – L 19 AS 54/14 B ER – No denial of ALG II benefits if the recipient fails to submit pension information, because the Jobcenter has the option of requesting the applicant to apply for a pension within a specified period pursuant to Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), and if the applicant fails to submit an application within that period, the Jobcenter may submit an application itself.
5. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
5.1 – Bavarian State Social Court, Judgment of 11 December 2014 – L 10 AL 142/13
Reduction of the assessment wage, secondary income, secondary employment
Principle (Juris):
If availability due to secondary employment is expressly limited to fewer hours than in the previous employment, the assessment wage must be reduced accordingly. Taking the secondary income into account, subject to the tax-free allowance, is also permissible.
Source: socialcourtsability.de
Note:
The reasons why the applicant has limited their availability for the employment agency's placement services are – unlike under the previous legal situation – irrelevant according to Section 131 Paragraph 5 Sentence 1 of the German Social Code, Book III (SGB III aF). The unemployed person is generally free to limit the number of hours per week they are available.
6. Decisions of the State Social Courts on Social Assistance (SGB X II)
6.1 – LSG Baden-Württemberg, Judgment of December 10, 2014 (Case No.: L 2 SO 4042/14):
Guiding Principles by Dr. Manfred Hammel:
For an applicant who is permanently and fully incapacitated for work, an individual additional need for the purchase of plus-size clothing and shoes can only be financed through a deviation from the standard allowance pursuant to Section 42 No. 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 27a Paragraph 4 Sentence 1 of the SGB XII, if this increased need is also proven in detail. Applicants must submit compelling evidence to substantiate their claim, demonstrating the actual costs they incurred for the purchase of such clothing and shoes. A significant deviation from average needs must be definitively established. Mere assertions are insufficient. Applicants can reasonably be expected to first look for affordable offers available online, which is a common practice.
Costs for renting parking spaces/garages are generally not considered housing costs within the meaning of Section 42 No. 4 of the German Social Code, Book XII (SGB XII) in conjunction with Section 35 Paragraphs 1 to 3 of the SGB XII, because such facilities do not directly serve the purpose of housing people. The costs for this need may exceptionally be recognized by the social welfare agency if..
– the apartment cannot be rented without the parking space,
– the garage/parking space rent does not lead to the total accommodation costs being unreasonable due to the lack of “separability” of this cost item (§ 35 para. 2 sentence 1 SGB XII) as well as
– all reasonable options for preventing or reducing these additional rental costs have been exhausted. This is the case if subletting the garage or parking space is either legally impossible (due to a corresponding prohibition in the rental agreement or house rules), or if subletting has demonstrably failed despite serious, proven efforts by the tenant in need.
6.2 – LSG Baden-Württemberg, Judgment of December 10, 2014 (Case No. L 2 SO 4058/13):
Guiding principles of Dr. Manfred Hammel:
Assistance for the procurement of a motor vehicle (§ 8 para. 1 sentence 1 of the Integration Assistance Ordinance) is to be granted by a social welfare provider only if the applicant has specifically demonstrated the necessity of the recurring and frequent use of their own car, i.e., if the individual disabled person is only able to participate in life in society with the help of their vehicle.
This cannot be assumed if a disabled person has sufficient alternative means of achieving their participation goals, other than using their own vehicle. Adjusting the disabled person's needs to the city bus schedule is reasonable.
6.3 – LSG Baden-Württemberg, Judgment of 15 October 2014 (Case No.: L 2 SO 2489/14):
On the applicability of the exclusion of claims pursuant to Section 41 Paragraph 4 of the German Social Code, Book XII (SGB XII) for reasons related to conduct.
Guiding principles of Dr. Manfred Hammel:
Section 41 Paragraph 4 of the German Social Code, Book XII (SGB XII) focuses centrally on the actions of the individual applicant and is based on the cost reimbursement regulation of Section 103 of the German Social Code, Book XII (SGB XII).
The duty of care under Section 41 Paragraph 4 of the German Social Code, Book XII (SGB XII) is assessed according to subjective criteria. The socially unacceptable behavior required by Section 41 Paragraph 4 SGB XII centrally presupposes culpable conduct, i.e., the ability to recognize the unlawfulness of the action, which in turn must be the cause of the need for assistance as defined in Section 41 Paragraph 1 Sentence 1 SGB XII.
The burden of proof for the existence of the exclusion criterion arising from Section 41 Paragraph 4 of the German Social Code, Book XII (SGB XII) lies with the social welfare provider.
Anyone who, in the years immediately preceding the application pursuant to Section 41 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), systematically reduces their considerable assets by spending a monthly amount corresponding to four and a half times the standard benefit to finance a higher standard of living, has at least grossly negligently brought about their need for assistance, so that Section 41 Paragraph 4 of the German Social Code, Book XII (SGB XII) applies.
Such a massive consumption of once existing assets within just a few years is clearly not a responsible way of handling funds to secure the necessary means of subsistence.
This is especially true if the applicant is a former freelancer who could have recognized this aspect.
7. Decisions of the social courts on social assistance (SGB X II)
7.1 – Social Court Mainz, decision of November 19, 2014 (Case No.: S 16 SO 148/14 ER):
Guiding principles of Dr. Manfred Hammel:
On the entitlement of a severely disabled person to higher benefits for participation in the community according to §§ 53 and 54 para. 1 sentence 1 SGB XII in conjunction with § 55 para. 2 nos. 3, 6 and 7 SGB IX as well as outpatient care and domestic services according to §§ 61 and 63 SGB XII in the form of the total budget.
Within the framework of the employer model, with regard to the on-call night duty required by the applicant disabled person and the associated wage costs, it is likely that these assignments are to be compensated at the same minimum rate as work performed during full working hours, which binds the severely disabled applicant as employer and must be recognized by the social welfare office as the cost bearer.
Case management services provide training and support to disabled applicants with the goal of enabling them to independently perform certain tasks in the future. This leads to a long-term reduction in the need for assistance, which is why such services are generally not inappropriate.
The mere fact that a disabled applicant no longer wishes to receive further support from a particular service provider and prefers another provider does not change the scope of the care needs identified so far and the actual circumstances as far as the need is concerned.
7.2 – Aachen Social Court, Judgment of 27 January 2015 – S 20 SO 148/14
Social assistance – basic income support for the elderly and those with reduced earning capacity – review of the appropriateness of accommodation costs – no further grace period when changing providers – health problems (diabetes, walking difficulties)
Guiding Principles (Author)
1. If the employable benefit recipient is subject to an obligation to reduce costs, the benefits for accommodation under the SGB 2 – in the event of a proven failure of local information possibilities – are to be limited to the values of the housing benefit table plus a supplement of 10 percent, even under the application of Section 12 of the Housing Benefit Act in its new version.
2. The change in benefits from SGB II to SGB XII and the resulting change in the benefit provider do not require that the person in need of assistance be notified again of the inadequacy of their housing costs and be granted a new six-month period in which the actual amount of the housing costs would be taken into account. This is because the notification from the job center regarding the inadequacy of the housing costs remains valid given the similarity of the legal basis and the applicable standard for housing costs; a further "grace period" is not in line with the purpose of the law.
3. The applicant is not prevented from moving to more affordable accommodation by either his reported health problems (diabetes, walking difficulties) or his age. If the applicant requires assistance from third parties for apartment viewings and/or moving to a different, more affordable apartment, Section 35 Paragraph 2 Sentence 5 of the German Social Code, Book XII (SGB XII) provides for the possibility that the social welfare agency may cover the costs of finding accommodation and moving.
Source: socialcourtsability.de
8. Decisions of the State Social Courts on Asylum Law (AsylblG)
8.1 – Lower Saxony-Bremen State Social Court, decision of 27 November 2014 – L 8 AY 57/14 B ER
No general entitlement to additional needs allowance for single parents receiving assistance under the Asylum Seekers' Benefits Act (AsylbLG)
Guiding Principles (Juris)
1. Lump-sum additional needs allowances for single parents are not provided for in the benefits under Sections 3 et seq. of the Asylum Seekers' Benefits Act (AsylbLG), in particular under Section 6 Paragraph 1 Sentence 1 AsylbLG. In this respect, the specific need, which may be covered by monetary, material, or service benefits, is decisive.
2. The legislator's decision to provide lump-sum cash benefits in the German Social Code, Book II (SGB II) and Book XII (SGB XII) due to the needs of single parents, while simultaneously providing for specific individual needs-based support in the Asylum Seekers' Benefits Act (AsylbLG), does not violate the fundamental right to a dignified minimum standard of living under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the Basic Law (GG), nor does it violate the general principle of equality under Article 3 Paragraph 1 of the Basic Law (GG).
Source: socialcourtsability.de
Note:
Regarding the additional needs for single parents according to § 6 para. 1 AsylbLG: LSG NRW, decision of 18.12.2014 – L 20 AY 76/14 B ER – and – L 20 AY 77/14 B ER.
8.2 – Lower Saxony-Bremen State Social Court, decision of September 4, 2014 – L 8 AY 70/12 – The appeal is granted.
Regarding the point in time at which the need for benefits to be provided retroactively pursuant to Section 44 of the German Social Code, Book X (SGB X)
Guiding Principles (Juris):
1. An authority that issued the original administrative act to be reviewed in proceedings under Section 44 of the German Social Code, Book X (SGB X), is no longer competent for the requested amendment under Section 44, Paragraph 3 of the SGB X only if it was never competent at any time or if its competence ceased after the issuance of the administrative act whose removal is sought (for example, due to the loss of subject-matter jurisdiction). A change in territorial jurisdiction is irrelevant in this respect.
2. For the question of the relevant point in time for a loss of need that extinguishes a claim in a benefit proceeding pursuant to Section 44 of the German Social Code, Book X (see Federal Social Court judgment of September 29, 2009 – B 8 SO 16/08 R), the relevant point in time is, according to general procedural principles and due to the requirement of effective legal protection, the date of the application within the meaning of Section 44 Paragraph 4 Sentence 3 of the German Social Code, Book X, or, in the case of an administrative proceeding initiated ex officio, the date of the initiating order.
Appeal filed B 7 AY 3/14 R
Source: socialcourtsability.de
9. Decisions of the social courts on asylum law (AsylblG)
9.1 – Social Court Stade, decision of 27 January 2015 – S 33 AY 33/14 ER
Standard benefit level 3, Asylum Seekers' Benefits Act, children aged 18-25 years
The applicant is to be granted benefits according to the standard needs level 1.
Guiding principles (author)
1. An adult applicant who lives in and manages a household with his parents and siblings is entitled to full basic benefits in accordance with Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) according to the standard benefit level 1 (Federal Social Court, judgment of 23 July 2014 – B 8 SO 14/13 R).
2. A different assessment does not result from the actual existing unequal treatment of benefit recipients under the age of twenty-five under the SGB II and the SGB XII/AsylbLG.
Unmarried adults up to the age of 25 who live in a shared household with other adults without being spouses or partners receive benefits under the German Social Code, Book II (SGB II), only at the level corresponding to standard benefit level 3 according to Section 8 Paragraph 1 Number 3 of the Law on Determining Standard Benefits pursuant to Section 28 of the German Social Code, Book XII (SGB XII) (RBEG). In contrast, under the German Social Code, Book XII (SGB XII), they are generally entitled to benefits at standard benefit level 1 according to the jurisprudence of the Federal Social Court (BSG), unless they exceptionally live in a separate household. This unequal treatment, the constitutionality of which can be questioned (expressly left open by the BSG in its judgment of July 23, 2014 – B 8 SO 14/13 R), disadvantages recipients of benefits under the SGB II and not those receiving benefits under the SGB XII or the Asylum Seekers' Benefits Act (AsylbLG), as in the present case.
Source: socialcourtsability.de
Note:
Similarly – SG Hildesheim, decision of 20.10.2014 – S 42 AY 26/14 ER.
9.2 – Social Court Stade, decision of 27 January 2015 – S 33 AY 32/14 ER
The applicant is to be granted benefits according to the standard needs level 1.
Guiding Principles (Author)
1. Standard benefit level 3 applies in cases of cohabitation with others (outside of residential facilities) only if there is no independent participation in household management or only a completely insignificant participation. Only in this case is the household in which the person entitled to benefits lives considered a "foreign household".
2. A father who lives in and manages a household with his son, daughter-in-law and grandson is entitled to full basic benefits in accordance with Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) according to the standard benefit level 1 (Federal Social Court, judgment of 23 July 2014 – B 8 SO 14/13 R).
Source: socialcourtsability.de
10. Social Court Braunschweig, Decision of December 8, 2014 – S 33 AS 653/13 ER – Commentary by Attorney Prof. Dr. Hermann Plagemann, Plagemann Attorneys at Law, Frankfurt am Main.
Social Court Braunschweig: Reasonableness of a measure
1. Measures for activation and vocational integration into employment pursuant to Section 16 of the German Social Code, Book II (SGB II), and Section 45 of the German Social Code, Book III (SGB III) can only be offered to the person in need of assistance after exercising discretion. The criteria of reasonableness set out in Section 10 of the German Social Code, Book II (SGB II) must also be observed.
2. When imposing a sanction, the legality of the measure for integration into employment must also be reviewed incidentally with regard to its reasonableness. (Author's guidelines)
Practical advice:
It has long been known that there are extreme cases in which neither the German Social Code, Book II (SGB II) nor Book XII (SGB XII, formerly the Federal Social Assistance Act (BSHG)) provides sufficient means to motivate such individuals to integrate into the workforce or to be integrated into it. The Social Court's (SG) decision offers only temporary relief: If all measures are deemed unreasonable, one could argue that the applicant no longer belongs to the group of people entitled to benefits under Sections 7 et seq. of SGB II. Due to the unreasonableness of any activity or integration measure, doubts then arise as to the existence of any residual employability. However, the "transition" to basic income support under SGB XII is neither socially nor politically acceptable.
Source: beck-fachdienst Sozialversicherungsrecht – FD-SozVR 2015, 365518: https://beck-aktuell.beck.de
11. Federal Court of Justice (BGH), decision of November 26, 2014 – Case No.: XII ZB 542/13
Principle (Juris):
The use of assets accumulated from social compensation payments under Sections 16 et seq. of the StrRehaG (German Law on the Rehabilitation of Victims of Crime) for the remuneration of a professional guardian constitutes a hardship for the ward within the meaning of Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII). This also applies to the interest earned on these assets.
Source: juris.bundesgerichtshof.de
Note:
See also: Social welfare office may not access compensation for victims of detention: www.juraforum.de
12. Federal Social Court, Judgment of 02.12.2014 – B 14 AS 60/13 R
Note by attorney Mathias Klose – Reimbursement of legal fees in objection proceedings: sozialrecht-aktuell.blogspot.de
13. KOS: Securing livelihoods with and without paid employment
The "Alliance for a Dignified Minimum Income" continues its efforts and has once again called for a significant increase in Hartz IV benefits. To stimulate the debate, the alliance held a conference at the end of November. The conference proceedings are now available online.
The conference focused on the connections and interactions between "securing one's livelihood with and without paid employment".
The complete documentation (PDF document, 2 MB) is available here: www.erwerbslos.de
To mark the conference, the alliance updated its position paper (as of January 2015), which demonstrates significant shortcomings in the standard benefit rates. The position paper (DIN A4 brochure, 40 pages plus update insert) can be ordered free of charge from KOS: www.erwerbslos.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
