1. Decisions of the Federal Social Court of 12 February 2015 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 12.02.2015 – B 10 ÜG 11/13 R
No automatic reduction of the compensation payment due to excessively long proceedings if the original claim had a low value in dispute
Principle (Author):
When considering the extent to which the plaintiff has suffered a disadvantage that is to be compensated in money, the law does not provide any justification for a general cap on compensation to the amount of the value in dispute in cases where the lump-sum compensation exceeds the value in dispute many times over.
Source: www.juris.de
2. Decisions of the Federal Social Court of 11 February 2015 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 11.02.2015 – B 4 AS 29/14 R
The income tax refund to be considered as income does not meet the requirements for deducting the employment allowance of 100 euros pursuant to Section 11 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II aF), nor is an employment allowance to be deducted pursuant to Section 30 of the German Social Code, Book II (SGB II aF) (since 1 April 2011 Section 11b Paragraph 3 of the German Social Code, Book II (SGB II)).
Principle (Author):
If spouses file their taxes jointly, but only one of them has earned taxable income, the right to a tax refund belongs solely to the spouse whose income was used to pay the taxes. The tax refund is therefore to be attributed to only that spouse as income.
Source: juris.bundessocialgericht.de
2.2 – BSG, Judgment of 11.02.2015 – B 4 AS 26/14 R
No temporary Hartz IV additional allowance for single parents
There is no entitlement to the additional needs allowance for single parents pursuant to Section 21 Paragraph 3 No. 1 SGB 2 if the parent claiming it only assumes responsibility for the care of the child to a monthly extent of approximately 40%.
Principle (Author)
1. Single parenting can also exist if divorced and separated parents alternate equally in the care and upbringing of their shared child in longer intervals of at least one week (so-called "shared custody" model; cf. judgment of 3 March 2009 – B 4 AS 50/07 R).
2. However, such a situation does not exist here. Applying the Senate's jurisprudence to other care arrangements where – according to the actual circumstances – different proportions of parental care responsibilities are practiced, is not possible.
3. The legislator, according to the wording of the regulation, associates the characteristic of single parenthood with a particular family constellation and links it to the primary responsibility for a child.
Source: juris.bundessozialgericht.de
2.3 – BSG, Judgment of 11.02.2015 – B 4 AS 27/14 R
Federal Social Court judges strengthen the position of married unemployed people with separate residences – job center may have to pay travel expenses to visit the child.
Guiding principle (author):
1. Married unemployed people living separately must be able to visit their child. They may be entitled to additional benefits from the job center for this purpose.
2. The prerequisites are good reasons for the separate residences, and the costs must not be unnecessarily high.
3. A special need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), due to travel expenses for visiting one's biological child can, in principle, also arise if the married parents live at two different places of residence but are not permanently separated in the family law sense.
4. Whether and in what way continuing family law obligations in these constellations are able to preclude claims for additional hardship needs is not a question of the special nature of the need, but rather a question of its unavoidability.
5. If the establishment of separate residences serves the purpose of taking up employment abroad (in the home country) and the complete withdrawal of the spouse and, in this case, the then seven-year-old child from receiving benefits to secure subsistence under the German Social Code, Book II (SGB II), it is beyond doubt that the establishment of two residences, in light of the principle of reducing the need for assistance within the meaning of Section 2 Paragraph 1 of the SGB II, does not preclude the unavoidable need for travel expenses to visit the child.
Source: juris.bundessocialgericht.de
3. Decisions of the Federal Social Court of 28 October 2014 on basic income support for job seekers (SGB II)
3.1 – Federal Social Court (BSG), Judgment of 28 October 2014 – B 14 AS 61/13
Basic income support for job seekers – Consideration and calculation of income – Allowances when earned income and tax-free income from voluntary work coincide
Guiding principles (author)
1. Deductions pursuant to Section 11b Paragraph 2 of the German Social Code, Book II (SGB II) are to be applied separately for each activity when income from non-privileged employment within the meaning of Section 11b Paragraph 2 Sentence 1 of the SGB II and from tax-privileged (voluntary) activity within the meaning of Section 11b Paragraph 2 Sentence 3 of the SGB II coincide and can also apply concurrently.
2. The increased tax-free allowance is not only to be taken into account when the compensation for the tax-privileged activity exceeds 100 euros.
3. However, the receipt of privileged income pursuant to Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) does not mean that its increased allowance is to be deducted from the total income.
4. When determining the additional allowance pursuant to Section 11b Paragraph 3 of the German Social Code, Book II (SGB II), the total income exceeding €100 is not to be included, but only the income that is (still) to be taken into account after the adjustment pursuant to Section 11b Paragraph 2 of the SGB II.
Source: juris.bundessozialgericht.de
4. Decisions of the Federal Social Court of 17 December 2014 on social assistance (SGB XII)
4.1 – BSG, Judgment of 17.12.2014 – B 8 SO 15/13 R
Social assistance – accommodation and heating – moving costs – no entitlement to approval of accommodation costs without a concrete housing offer
Guiding principle (author):
There is no entitlement to approval of relocation costs without a concrete housing offer.
Source: juris.bundessocialgericht.de
5. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
5.1 – LSG Baden-Württemberg Judgment of 9 February 2015, L 1 AS 5146/13
Legal Principles (Juris):
The granting of a subsidy under Section 27 Paragraph 3 of the German Social Code, Book II (SGB II) to a trainee is precluded if the uncovered housing costs, which are to be determined according to the SGB II, do not exceed the difference between the abstract housing costs according to the SGB II and the housing costs included in the vocational training allowance.
Source: sozialgerichtsbarkeit.de
5.2 – North Rhine-Westphalia State Social Court, Judgment of December 4, 2014 – L 7 AS 1775/14 – The appeal is granted.
Basic income support for job seekers – Request to apply for early retirement pension – Absence of unfairness – Exercise of discretion – Constitutionality of Section 12a of the German Social Code, Book II (SGB II)
Guiding Principles (Author)
1. In addition to the cases regulated in the Unfairness Ordinance, in which early use is unfair to the person concerned, further categories of cases are not to be examined at the level of the elements of the offense. The cases regulated in Sections 2 to 5 of the Unfairness Ordinance are exhaustive (left open: Higher Social Court of North Rhine-Westphalia, Decision of May 22, 2013 – L 19 AS 291/13 B ER).
2. There is no doubt about the constitutionality of Section 12a of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
5.3 – North Rhine-Westphalia State Social Court, decision of 16 January 2015 – L 2 AS 1848/14 B – legally binding
cost reduction request – instruction on operating costs – no administrative act
Guiding principle (author):
The information letter from the job center “Instruction on operating costs” does not have the quality of an administrative act.
Letters from social security agencies informing recipients of excessive housing costs and requesting them to reduce these costs are merely informational letters with an explanatory and warning function.
Source: sozialgerichtsbarkeit.de
5.4 – Berlin-Brandenburg State Social Court, Judgment of 18 December 2014 – L 18 AS 1826/14
The costs of the eviction and the resulting storage costs for household goods for the former apartment of the benefit recipient (LB) do not have to be covered by the basic income support provider, because ultimately the LB is requesting the assumption of a general debt repayment, which cannot be the task of basic income support benefits under the German Social Code, Book II (SGB II).
Guiding principle (author):
These costs do not serve to maintain habitability or facilitate an orderly move into an apartment and therefore do not fall under the part of subsistence security covered by claims according to Section 22 of the German Social Code, Book II (SGB II). This is because the costs only arose because the recipient, despite the termination of the tenancy and multiple stays from eviction, did not vacate their former apartment, and the eviction had to be enforced by a bailiff. Consequently, these costs cannot be considered "reasonable" within the meaning of Section 22, Paragraph 1, Sentence 1 of the SGB II.
Source: socialcourtsability.de
Note:
See Bay LSG, judgment of 30.01.2014, L 7 AS 676/13 – according to which costs resulting from an eviction action generally constitute costs of accommodation pursuant to Section 22 Paragraph 1 SGB II or rent arrears that can be covered pursuant to Section 22 Paragraph 8 SGB II.
6. Decisions of the social courts on basic income support for job seekers (SGB II)
6.1 – SG Stade, decision of 04.02.2015 – S 28 AS 238/14 ER – unpublished
Guiding principles (Attorney Jens Hake)
1. If the family court revokes parental custody and the children concerned are placed elsewhere, the job center must continue to grant the costs of the previous apartment for the duration of the family custody proceedings, even if the apartment is objectively unsuitable.
2. Applicants are not required to disclose to the job center the reasons for the withdrawal of parental rights and/or the prospects of success for any appeals against such withdrawal decisions.
Source: Attorney Jens Hake, Salztorswall 5a, 21682 Stade
6.2 – SG Reutlingen, Judgment of 25.11.2013 – S 7 AS 2094/12 – legally binding – unpublished
Regarding the assumption of travel expenses of the mother by the job center for the father's contact with the daughter.
Principle (Author):
The job center must pay a mother the travel expenses to the airport and the parking fees incurred there in the amount of €27 per month as an additional need according to § 21 para. 6 SGB 2, so that the father's right of access is guaranteed.
Note:
See also the press release from the Social Court of Reutlingen dated January 30, 2014: www.sozialgericht-reutlingen.de
6.3 – Social Court Karlsruhe, Judgment of 21 January 2015 – S 4 AS 2983/12
No readily available funds solely due to the possibility of applying for a pension
Guiding principles (Juris):
Considering fictitious income – including references to a possible pension application – violates the principle of needs-based coverage.
Source: sozialgerichtsbarkeit.de
6.4 – SG Mainz, decision of 05.02.2015 – S 9 AS 47/15 ER – unpublished
Even after the ECJ ruling in Dano in November 2014, benefits under the German Social Code, Book II (SGB II) are still available for unemployed EU foreigners.
Attorney Christian Welter, In der Dalheimer Wiese 20, 55120 Mainz:
Even after the ECJ's Dano ruling of November 2014, benefits under the German Social Code, Book II (SGB II) are still available to unemployed EU citizens. On February 5, 2015, the Mainz Social Court obtained a ruling in favor of a Spanish woman (S 9 AS 47/15 ER). The ruling was based on her taking language classes and maintaining a connection to the German labor market through a mini-job. Due to her academic qualifications and the local shortage of skilled workers, her job search is considered promising.
Source: www.rechtsanwelter.de
7. Decisions of the State Social Courts on employment promotion under the (SGB III)
7.1 – Berlin-Brandenburg Higher Social Court, Decision of December 1, 2014 – L 14 AL 134/13
Unemployment Insurance – Self-Employed Persons – Exclusion of Voluntary Continued Insurance Due to Two Interruptions of Self-Employment and Claims for Unemployment Benefits – Constitutionality
Principle (Juris)
1. Two interruptions pursuant to Section 28a Paragraph 2 Sentence 2 of the German Social Code, Book III (SGB III), as amended and in force from January 1, 2011, occur when a claim for unemployment benefits is asserted.
2. The fact that the exclusion ground does not apply if the receipt of unemployment benefits is based on a newly established claim (as stated in the explanatory memorandum to the law – BT-Drs. 17/1945 p. 14) does not apply if the interruptions occur after a renewed claim for unemployment benefits.
Source: dejure.org
8. Decisions of the State Social Courts on Social Assistance (SGB X II)
8.1 – Schleswig-Holstein Higher Social Court, Judgment of November 26, 2014 (Case No.: L 9 SO 33/11)
Headnotes by Dr. Manfred Hammel:
1. For shorter absences of up to one month, the responsibility of the social welfare agency in whose area a person in need usually resides and actually resided both before and after their trip remains in effect (§ 98 para. 1 sentence 1 SGB XII).
2. This is the case precisely when the actual need for assistance of a disabled and care-dependent person consisted of the need of the parents as caregivers for respite (so-called respite care pursuant to Section 65 Paragraph 1 Sentence 2, 3rd Alternative SGB XII).
3. The question of which measure is appropriate to relieve the caregiver must be decided based on the requirements of each individual case. Relief in this sense can also be achieved through a temporary absence of the person requiring care (e.g., during a holiday trip organized by a disability support provider).
4. Section 65, paragraph 1, sentence 2 of the German Social Code, Book XII (SGB XII) does not refer to claimed minimum costs, but rather to reasonable costs. This provision must therefore be interpreted in light of Section 9, paragraph 2 of the SGB XII. The wish of a disabled person to undertake a holiday activity during the period in which their parents, as caregivers, require respite care, is therefore generally worthy of consideration and takes into account the priority of outpatient over inpatient services stipulated in Section 9, paragraph 2, sentence 2 of the SGB XII.
Note:
See also Britta Wiegand: On entitlement to social assistance during a vacation or visit to relatives: www.bund-verlag.de
8.2 – LSG Schleswig-Holstein, Judgment of November 26, 2014 (Case No.: L 9 SO 23/11):
Guiding principles of Dr. Manfred Hammel:
1. The conditions of § 19 para. 6 SGB XII are not met if, after the death of a person in need of outpatient care, the private care service providing care services claims reimbursement of uncovered expenses from the period during which outpatient care was provided from the social welfare agency.
2. There is no dispute here regarding a claim for benefits for facilities or for care allowance.
3. According to the unambiguous wording in Section 13 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), to which reference is made in Section 13 Paragraph 2 SGB XII, outpatient services are to be defined as activities performed outside of institutions. Section 75 Paragraph 1 SGB XII also expressly differentiates between the term "institution" and the term "services." The legislator does not advocate a broad interpretation of the term "institution" that could also include outpatient services.
4. The same applies particularly if the care contract concluded with the private care service is not linked to the person receiving care staying in a special residential facility.
5. The fact that Section 19 Paragraph 6 of the German Social Code, Book XII (SGB XII) treats benefits for inpatient facilities substantially differently than outpatient benefits does not violate the general principle of equality derived from Article 3 Paragraph 1 of the German Basic Law (GG).
6. The differences between providers of outpatient services and those providing services in facilities are so significant that they justify different treatment. In particular, the cost risk for a provider of inpatient services is considerably greater than for an outpatient provider. Furthermore, facilities very often care for individuals with a high level of care needs, whose death is much more foreseeable than is generally justifiable for individuals receiving outpatient care.
8.3 – Bavarian State Social Court, decision of 27 January 2015 – L 8 SO 306/14 B ER
Temporary injunction, assistance in other life situations, travel expenses for picking up a child in Brazil
Guiding principles (Juris)
1. The endangerment of the welfare of a child living abroad is only relevant for a recipient of benefits under the German Social Code, Book XII (SGB XII), if the recipient himself is in an unreasonable situation that can only be addressed by means of social assistance law.
2. If a twelve-year-old child has been separated from their parents for at least one year and is staying with their grandparents, the outcome of the main proceedings concerning the high costs of family reunification can be awaited pursuant to Section 86b of the Social Court Act (SGG).
3. When exercising discretion under Section 73 of the German Social Code, Book XII (SGB XII), it must be considered whether the travel expenses were actually necessary. Exceptionally high costs usually do not justify the use of public funds within the meaning of Section 73, sentence 1, of the SGB XII.
Source: socialcourtsability.de
8.4 – Lower Saxony-Bremen State Social Court, decision of 12 February 2015 – L 8 SO 264/14 B ER –
Guiding Principles (Attorney Michael Loewy):
Section 19 Paragraph 5 of the German Social Code, Book XII (SGB XII) grants the social welfare agency the authority to provide social assistance in emergency situations despite the possibility of the applicant's income and assets being used (so-called "pseudo-social assistance against reimbursement of expenses"). Such an emergency situation exists when homelessness is imminent due to accrued arrears in nursing home costs.
Source: www.anwaltskanzlei-loewy.de
Note:
See Social Court Dortmund, judgment of 24 October 2014 – S 41 SO 418/14 ER
Social court proceedings – preliminary legal protection – regulatory order – grounds for the order – social assistance – long-term care assistance – assumption of nursing home costs – termination of the nursing home contract – lack of right of return after inpatient hospital treatment – entitlement to an order – extended assistance – non-existence of an entitlement to benefits under Section 61 of the German Social Code, Book XII (SGB XII) due to excess assets – existence of a current emergency situation that the person in need cannot address on their own
Guiding Principles (Author)
1. The social welfare provider must provisionally cover the uncovered costs for the applicant's accommodation in a retirement and nursing home, because if (attributed) assets are not actually available to the person in need to cover their own (subsistence-securing) needs, there is a justified case within the meaning of Section 19 Paragraph 5 of the German Social Code, Book XII (SGB XII), and the gap in needs must be filled by the social welfare provider by way of extended social assistance pursuant to Section 19 Paragraph 5 of the German Social Code, Book XII (SGB XII) (left open in the Federal Social Court's judgment of September 20, 2012, file number B 8 SO 13/11 R).
2. Insofar as, in such cases, the granting of "genuine" social assistance is considered instead of applying Section 19 Paragraph 5 of the German Social Code, Book XII (SGB XII), by asserting a claim for reimbursement of costs pursuant to Section 103 Paragraph 1 of the SGB XII, this approach is not to be followed. According to its wording, Section 103 Paragraph 1 of the SGB XII is limited to situations in which the person liable for reimbursement "has brought about the conditions for receiving social assistance benefits.".
3. These requirements are not met in cases such as the present one – due to a lack of need within the meaning of Section 19 Paragraph 3 of the German Social Code, Book XII (SGB XII) – so that they would only fall under Section 103 Paragraph 1 of the SGB XII if the wording were interpreted broadly. However, they can readily be subsumed under Section 19 Paragraph 5 of the SGB XII, so this approach is preferable (published in the Tacheles Case Law Ticker, Week 45/2014).
9. Decisions of the social courts on social assistance (SGB X II)
9.1 – Social Court Munich, Judgment of 12 March 2013 – S 48 SO 155/10
Entitlement to reimbursement of costs for a university assistant
Guiding principles (REHADAT)
1. The entitlement to social assistance benefits is precluded by assets that must be used first.
2. Disability and need for assistance do not constitute hardship within the meaning of Section 90 Paragraph 3 of the German Social Code, Book XII (SGB XII).
3. There is no constitutional requirement to exempt the assets of the person in need from being taken into account.
Source: dejure.org
10. SG Detmold – Press release dated February 12, 2015
Reimbursement of travel expenses by the employer is not considered income under the German Social Code, Book II (SGB II): sozialgerichtsbarkeit.de
Full text of the judgment of 18 September 2014 – S 18 AS 871/12 – legally binding – available in the Tacheles case law ticker, week 46/2014 – item 4.7: tacheles-sozialhilfe.de
11. SG Detmold – Press release dated February 12, 2015
Children are entitled to reduced standard benefits if they live alternately with their mother and father: sozialgerichtsbarkeit.de
The full text of the legally binding decision can be found in the Tacheles case law ticker, week 46/2014 – item 4.6: tacheles-sozialhilfe.de
12. Press release of the Bavarian State Social Court of 11 February 2015 regarding: Bavarian State Social Court decision of 21 January 2015, L 8 SO 316/14 B ER
In addition to benefits under the Asylum Seekers' Benefits Act, children with mental disabilities are also entitled, if needed, to integration assistance as a youth welfare service.
Press release: sozialgerichtsbarkeit.de
Full text published in the Tacheles case law ticker, week 6/2015 – item 6.1: tacheles-sozialhilfe.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
