1. Decisions of the Federal Social Court of 24 April 2015 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 29.04.2015 – B 14 AS 19/14 R
Job centers are not allowed to summon unemployed individuals to appointments on a serial basis and then reduce their benefits if they fail to appear.
A maximum of three consecutive missed appointments may result in a total benefit reduction of up to 30 percent.
Guiding principles (author)
1. The benefit recipient was entitled to file an isolated appeal against the individual notices concerning the determination of a failure to report and the reduction of their ALG II by 10% of the relevant standard benefit for three months (so-called "sanction notice").
2. This follows from the wording of Section 31b Paragraph 1 Sentence 1, Section 39 No. 1 SGB II in the version applicable from 1 April 2011, which assume such an independent administrative act and, contrary to previous case law, do not consider it a unit with the administrative act by which this reduction is implemented within the framework of the revocation of an existing benefit notice (so-called "reduction notice") or a new benefit notice.
3. It is generally not unlawful for the Jobcenter to send seven summonses within eight weeks.
4. However, it should be noted that a reporting requirement and its specific form are at the discretion of the Jobcenter. Seven identical reporting requirements do not meet the resulting requirements (cf. Section 54 Paragraph 2 Sentence 2 of the Social Court Act) regarding the limits and purpose of this discretion, in this case, in particular, supporting the integration of the person concerned into working life pursuant to Section 1 Paragraph 2 of the German Social Code, Book II.
5. At least after the third identical summons to appear, which resulted in the same failure to attend the appointment, the Jobcenter should not have continued in the same manner. The decisions based on these further summonses, determining a failure to appear and a reduction in benefits, are unlawful.
6. The effects of the reductions resulting from the decisions, totaling 30% of the relevant standard benefit, are not disregarded, but are still considered to be within the scope of the legislator's freedom to shape the law in specifying the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law).
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 29.04.2015 – B 14 AS 6/14 R
The refusal to grant approval for a move does not have any lasting effect on the future that would need to be considered when reviewing the necessity of a later move – capping of expenses for accommodation and heating after a move according to § 22 para. 1 sentence 2 SGB II
Guiding principles (author)
1. However, a prerequisite for capping the expenses for accommodation and heating after a move pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is – in addition to the lack of necessity of the move – the existence of an abstract limit of reasonableness in the local comparison area.
2. This follows from the wording of the regulation, which presupposes an increase in the "reasonable" expenses for accommodation and heating, as well as from its purpose, which is to prevent those in need of assistance from exhausting the limits of reasonable housing costs set by the local authority (see also Bundestag printed matter 16/1410, p. 23). Insofar as the local authority has not specified such values, be it for the basic rent, the additional costs (excluding heating), or the heating costs, the conditions for such a "cap" are not met.
3. In this case, only an individual assessment of inappropriateness can take place pursuant to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II). Insofar as such limits of appropriateness exist, the scope of the "cap" and its adjustment to a change in circumstances can also be derived from them.
Source: juris.bundessocialgericht.de
1.3 – BSG, Judgment of 29.04.2015 – B 14 AS 10/14 R
The €8,000 received by the household must be fully considered as income. Despite debts, the inheritance will be fully counted towards Hartz IV benefits.
Guiding principles (author)
1. The fact that this amount was deposited into the plaintiff's current account, which at that time had a debit balance of approximately 3000 euros, does not change this inflow; the debt repayment was a form of use of funds (cf. already BSG, judgment of 30.07.2008 – B 14 AS 26/07 R).
2. This one-off income of 8000 euros, which was to be taken into account, was to be divided equally over a period of six months in accordance with Section 11 Paragraph 3 Sentence 2, 3 SGB II.
Source: juris.bundessocialgericht.de
1.4 – BSG, Judgment of 29.04.2015 – B 14 AS 8/14 R
Reimbursement of the costs of her medical treatments, which the applicant does not receive from her private health insurance (PKV) due to her health insurance tariff with deductible and has to pay herself, as a subsidy towards her health insurance contributions pursuant to Section 26 Paragraph 1 of the German Social Code, Book II (SGB II), is not possible because these costs are not payments towards contributions, but rather medical treatments billed to her.
Guiding principles (author)
1. However, the assumption of these costs as an unavoidable, ongoing, not merely one-off special need pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), is a possibility.
2. Based on the legal concept with the generally acceptable switch to the basic tariff of private health insurance and due to the merely supplementary nature of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), such costs cannot permanently constitute an unavoidable need, but only for a transitional period.
3. As long as the basic income support provider under the German Social Code, Book II (SGB II) has not provided advice on the possibility of switching to a different tariff and the consequences of remaining in a tariff with a deductible, or as long as switching is not legally possible, a claim for reimbursement of medical treatment costs may exist under Section 21 Paragraph 6 of the SGB II, insofar as expenses have been incurred for medical treatment that could have been claimed in the statutory health insurance system (GKV).
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of 17 February 2015 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 17 February 2015 – B 14 AS 1/14 R
Basic income support for job seekers – consideration of income – inflow of earned income and unemployment benefit I – deduction of the basic allowance for employed persons in need of assistance only from earned income – blocking effect – inadmissibility of offsetting due to lack of cause for the reimbursement claim
Guiding principle (author)
1. No deduction of the basic allowance pursuant to Section 11 Paragraph 2 Sentence 2 SGB II aF (now Section 11b Paragraph 2 Sentence 2 SGB II) for unemployment benefit 1.
2. The deduction of the basic tax allowance is only possible in the case of earned income and a transfer of any unused remainder to other types of income is not permitted (BSG, (Judgment of 5 June 2014 – B 4 AS 49/13 R).
Source: juris.bundessocialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Thuringian State Social Court, judgment of 13 November 2014 – L 9 AS 678/12 – legally binding
Cancellation and reimbursement notice unlawful – capital-forming life insurance – valuation reserves and surplus shares –
Neither the profit participation nor the valuation reserves constitute income within the meaning of the German Social Code, Book II (SGB II). Rather, they are assets.
Guiding principles (author):
Funds accruing during the receipt of benefits under Book II of the German Social Code (SGB II) from profit participation and valuation reserves of a capital-forming life insurance policy concluded before the application for benefits under Book II of the German Social Code (SGB II) are assets, not income (in accordance with the Federal Social Court (BSG), judgment of February 20, 2014 – B 14 AS 10/13 R, para. 49, which deals with the consideration of assets).
Source: socialcourtsability.de
3.2 – Thuringian State Social Court, decision of 08.04.2015 – L 4 AS 263/15 B ER – legally binding
Basic income support for job seekers – Request to apply for early retirement pension – Requirements for the exercise of discretion
It is not the responsibility of the benefit provider, within the scope of its discretionary powers under Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), to attempt an estimate as to whether the old-age pension without deductions – which may only be payable after several years – would likely be sufficient to cover the needs of the recipient (correctly: Saxon State Social Court, decision of February 19, 2015 – L 8 AS 1232/14 ER; contra: Saxony-Anhalt State Social Court, decision of December 10, 2014 – L 2 AS 520/14 B ER).
Guiding principles (Juris)
1. According to § 12a sentence 1 and sentence 2 no. 1 SGB II, a person entitled to benefits is legally obliged to apply for an early retirement pension after reaching the age of 63.
2. As a rule, a benefit provider is entitled to request that a benefit recipient comply with this obligation. The discretion provided for in Section 5 Paragraph 3 Sentence 1 of the German Social Code (SGB) when requesting the application of priority social benefits from other providers is, in the case of Section 12a Sentence 1 and Sentence 2 No. 1 of the German Social Code, Book II (SGB II), a so-called intended discretion. This means that, when exercising its discretion, the benefit provider does not have to re-evaluate the adverse consequences regularly associated with claiming early retirement benefits, which are generally approved by the legislator. A discretionary decision that weighs the interests of the benefit recipient against the public interest in detail is only required under Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) in atypical cases and in particular if the forced use of the other social benefit would be associated with an exceptional disadvantage for the benefit recipient, which could constitute an unreasonable ("unfair") hardship (following the decision of the Saxon State Social Court of February 19, 2015 – L 8 AS 1232/14 ER, juris).
Source: socialcourtsability.de
Note: a. A. Social Court Frankfurt/Oder, decision of 07.04.2015 – S 25 AS 2705/14 ER and Higher Social Court Saxony-Anhalt, decision of 10 December 2014 – L 2 AS 520/14 B ER
3.3 – Lower Saxony-Bremen State Social Court, Judgment of March 24, 2015 – L 7 AS 1504/13 – The appeal is granted.
Basic income support for job seekers – Exclusion from benefits during residence in a facility for the execution of judicially ordered deprivation of liberty – Leave of absence from preventive detention in the form of trial accommodation
Principle (Juris):
Trial residence within the framework of preventive detention does not constitute residence based on judicial deprivation of liberty in the sense of preventive detention law and does not justify an exclusion from benefits under Section 7 Paragraph 4 of the German Social Code, Book II (SGB II).
Source: www.rechtsprachung.niedersachsen.de
Note:
Similarly, Bay LSG, judgment of 17.09.2014 – L 16 AS 813/13 – according to which the continued execution of preventive detention (§ 64 StGB) does not preclude the granting of benefits under the SGB II if, in preparation for release, a permanent leave of absence to one's own apartment is granted and only individual appointments have to be attended in the correctional facility (so-called trial living).
3.4 – Bavarian State Social Court, Judgment of 18 March 2015 – L 11 AS 104/15
Regarding the offsetting of a loan repayment claim due to currently unavailable assets against ongoing benefits under the German Social Code, Book II (SGB II) (pursuant to Section 42a Paragraph 2 Sentence 1 SGB II) – repayment claims from loans pursuant to Section 24 Paragraph 5 SGB II – special regulation of Section 42a Paragraph 3 Sentence 2 SGB II – repayment agreement: If
the Jobcenter (JC) has not attempted to conclude an agreement with the person in need of assistance (HB) pursuant to Section 42a Paragraph 3 Sentence 2 SGB II, a unilateral declaration of offsetting by administrative act is unlawful.
Guiding Principles (Author)
1. It is irrelevant whether the loan has already become immediately due in full, even though only part of the properties referenced in the loan agreement have been sold, because in this case, instead of the offset of EUR 37.40 per month declared by the Jobcenter by administrative act pursuant to Section 42a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), a repayment agreement should have been concluded with the owner.
2. If the amount received does not cover the outstanding loan amount, an agreement should be reached regarding the repayment of the outstanding amount, taking into account the borrower's financial circumstances (Section 42a, Paragraph 3, Sentence 2 of the German Social Code, Book II). Such an agreement can enable the borrower to raise the outstanding amount over a longer period and thus protect them from immediate debt collection.
3. Since the legislator has created a special regulation in Section 42a Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) for the repayment of loans that have become due because of an asset that is temporarily unusable, recourse to the general offsetting option for other loans under Section 42a Paragraph 2 Sentence 1 of the SGB II is not possible.
4. A limitation of the requirement of a (priority) agreement on repayment to cases in which, even after realization, ongoing benefits continue to be provided as a loan pursuant to Section 24 Paragraph 5 of the German Social Code, Book II (SGB II), cannot be inferred from either the wording of the law or the legislative intent.
5. Only if an agreement should fail would a unilateral offset declaration by the job center be considered.
Source: socialcourtsability.de
3.5 – Berlin-Brandenburg State Social Court, Judgment of 28 January 2015 – L 29 AS 2220/14
Regarding the requirement of written form for filing an appeal
Editorial principle:
If the signature on the appeal document transmitted via computer fax/telefax and via EGVP is clearly not a handwritten signature but rather inserted electronically, it is established that the authorized representative has not signed the original document "by hand with a signature or by means of a notarized mark" and therefore has not effectively signed it within the meaning of Section 151 Paragraph 1 of the Social Court Act (SGG).
Source: www.jurpc.de
3.6 – North Rhine-Westphalia State Social Court, decision of April 10, 2015 – L 19 AS 288/15 B – legally binding.
Self-employed supplementary benefit recipient – Provisional benefits to secure subsistence pursuant to Section 40 Paragraph 2 No. 1 of the Social Courts Act (SGG) in conjunction with Section 328 Paragraph 1 Sentence 1 No. 3 of the German Social Code, Book III (SGB III) – expired benefit period – need for legal protection – failure to grant a subsidy for the contribution to private long-term care insurance pursuant to Section 26 of the German Social Code, Book II (SGB II).
Regarding the determination of need, an authority has no discretion even within the framework of a decision pursuant to Sections 40 Paragraph 2 No. 1 SGB II, 328 Paragraph 1 SGB III.
Guiding Principles (Author)
1. The applicant's need for legal protection has not lapsed with regard to the expiration of the benefit period at the time the action was filed and the possibility of applying for a final determination of the benefit amount. A need for legal protection exists if a plaintiff asserts a "legitimate interest" with their action for annulment and benefit and this interest cannot be achieved in a simpler and faster manner (cf. Federal Social Court judgment of February 24, 2011 – B 14 AS 75/10 R).
2. Once a provisional approval has become legally binding, its provisional nature can no longer be reviewed within the framework of a final benefit notice or reimbursement notice.
3. Therefore, a person entitled to benefits – even taking into account the right to legal protection under Article 19 Paragraph 4 of the Basic Law – cannot be denied the right to have the legality of a provisional grant reviewed by a court even after the expiry of the grant period with regard to the amount of benefits, especially since the duration of an administrative procedure concerning a final determination – as the present case shows – is not foreseeable.
4. Even considering the specific circumstances of the present case – provisional approval based on an income of EUR 0.00 – this does not justify the assumption that there is no need for legal protection.
Source: socialcourtsability.de
3.7 – North Rhine-Westphalia State Social Court, decision of 10 April 2015 – L 19 AS 42/15 B ER and – L 19 AS 43/15 B – legally binding
basic income support under the German Social Code, Book II (SGB II) – British citizen – standard allowance pursuant to Section 20 Paragraph 2 Sentence 1 SGB II
Guiding principle (author):
A British citizen is entitled to the standard allowance according to § 20 para. 2 sentence 1 SGB II within the framework of the balancing of consequences.
Source: socialcourtsability.de
3.8 – North Rhine-Westphalia State Social Court, decision of 15 April 2015 – L 7 AS 428/15 B ER – legally binding.
Within the framework of a balancing of interests to be carried out with regard to the provision of Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II), the obligation of the Jobcenter (JC) to provide the Greek applicants with the standard benefit rate must be declared – request for a preliminary ruling from the European Court of Justice (ECJ).
Guiding principles (author)
1. The complexity of the legal regulations, taking into account the effects of European legal norms on national laws, can be seen in the proceedings before the adjudicating Senate under file number L 7 AS 2136/13, in which claims of Spanish nationals are in dispute.
2. The deciding Senate has stayed the aforementioned proceedings in order to obtain a preliminary ruling from the CJEU on the various questions, including whether other primary law principles of equal treatment, in particular Article 45(2) TFEU in conjunction with Article 18 TFEU, preclude a national provision that categorically denies Union citizens social benefits for the first three months of their stay, benefits intended to secure their livelihood and simultaneously facilitate access to the labor market, if these Union citizens are neither employees nor self-employed persons, nor entitled to freedom of movement under Section 2(3) of the Freedom of Movement Act/EU 2004, but have a genuine connection to the host Member State and, in particular, to its labor market (referral to the CJEU by the Senate of 22 May 2014 – L 7 AS 2136/13, CJEU C-299/14, Garcia-Nieto case). The request for a preliminary ruling is still pending.
3. In its judgment of 11 November 2014 (C-333/13; Dano case), the CJEU did not question the validity of the exclusion from benefits during the first three months of residence in the host state, but it left open the question of how to decide when a genuine link to the host state and its labor market can be affirmed. The same applies to the Advocate General's opinion in case C-67/14 (B; paragraph 75), which is not binding in any case.
Source: socialcourtsability.de
3.9 – LSG Saxony, decision of 22.04.2015 – L 8 AS 235/15 B ER
Regarding the assumption of rent arrears amounting to almost €12,000 for a single mother with three minor children by way of preliminary injunction – grounds for the order – no limit on the amount of rent arrears – the borrower is only the mother
The mere fact that the apartment occupied by the applicant and her three children (aged 13, 5, and 6 months) is to be forcibly vacated constitutes grounds for the order, cf. Article 13 of the Basic Law. This is not altered by the fact that the local police would be obligated under police regulations to provide emergency accommodation.
Thus, even economically unreasonable (reprehensible) actions by the person in need of assistance, which may have (partly) caused the impending homelessness, do not preclude the assumption of rent arrears as a benefit claim under the German Social Code, Book II (SGB II).
Guiding principles (author)
1. The fact that the police are obliged to provide the applicant and her 3 minor children with emergency accommodation does not change the fact that the applicant will become homeless.
2. This last measure, taken as an official police measure, does not preclude the assumption of imminent homelessness within the meaning of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), since this is always the last resort and otherwise the risk of homelessness within the meaning of Section 22 Paragraph 8 Sentence 2 of the German Social Code, Book II (SGB II) would never exist.
3. Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) does not provide for any limit on the amount of rent arrears to be covered.
4. This is also not a conceivable atypical case of abuse which could exceptionally preclude the application of Section 22 Paragraph 8 Sentence 2 of the German Social Code, Book II (SGB II).
5. The rent arrears arose after her partner moved out of the apartment. Due to family circumstances, the mother was no longer able and overwhelmed to manage her finances. She did not receive any benefits under the German Social Code, Book II (SGB II), during this period because she had not applied for them. However, economically unwise behavior does not alter the fact that debt assumption is the standard procedure, particularly in cases of homelessness.
6. There are no indications of circumstances in the applicant's conduct that would suggest speculation or reliance on the Jobcenter assuming her debts (cf. LSG Baden-Württemberg, decision of 13.03.2013 – L 2 AS 842/13 ER-B).
7. Ultimately, in cases of imminent homelessness and the resulting limited discretion of the basic income support provider, the applicant's fundamental rights, in particular the fundamental right to housing as a constitutionally protected right to existence, must be respected. The provision of Section 22 Paragraph 8 Sentence 2 of the German Social Code, Book II (SGB II), is intended to provide exceptional, more extensive protection beyond the coverage of current needs.
8. The decision of the Social Court of Chemnitz dated 17 February 2015 under file number S 2 AS 357/15 ER was confirmed by the Saxon State Social Court with a decision dated 22 April 2015 under file number L 8 AS 235/15 B ER.
Note:
See LSG NRW, decision of 17.09.2013 – L 19 AS 1501/13 B – The provision does not contain any limitation on the amount of the loan claim pursuant to Section 22 Paragraph 8 SGB II.
3.10 – LSG Saxony, Judgment of 26.02.2015 – L 3 AS 80/12
The musician's rehearsal room is not eligible for subsidized housing under Section 22 of the German Social Code, Book II (SGB II).
Guiding Principles (Author)
1. A musician receiving supplementary benefits is not entitled to reimbursement of the costs for the rehearsal room under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), as this regulation only covers benefits to secure subsistence for accommodation and heating, i.e., in general terminology, benefits for housing (cf. Federal Social Court (BSG), judgment of November 23, 2006 – B 11b AS 3/05 R; Saxon State Social Court (LSG), decision of August 11, 2010 – L 2 AS 421/10 B ER).
2. The provision of benefits for accommodation and heating is not intended for business premises, but exclusively for private living spaces (see Federal Social Court, judgment of November 23, 2006 – B 11b AS 3/05 R). The same applies to a rehearsal room that is used only privately and not for business purposes. The costs associated with pursuing a particular hobby are not to be covered by the costs of accommodation and heating, but rather from the designated portion of the standard allowance, in particular the consumer spending allowance in Section 9 (leisure, entertainment, culture) as defined in Section 5 Paragraph 1 of the Act on the Determination of Standard Allowances pursuant to Section 28 of Book Twelve of the Social Code (Standard Allowance Determination Act – RBEG).
Source: socialcourtsability.de
3.11 – Saxon State Social Court, decision of 04.03.2015 – L 3 AS 94/15 B ER – legally binding.
A prisoner in open custody is not entitled to a loan of EUR 5,000.00 for the purchase of winter clothing, for the purchase of other clothing, bed linen and tea towels, for the search for accommodation (deposit, rent, etc.) as well as for the purchase of initial furnishings and for move-in renovations according to the German Social Code, Book II (SGB II).
Guiding Principles (Author)
1. Therefore, the question of whether benefits under Book II of the German Social Code (SGB II) could be received does not depend on whether any relaxations of the enforcement measures are granted. Only if an applicant for benefits under SGB II is permitted to take up a specific employment relationship can he or she be entitled to benefits again pursuant to Section 7 Paragraph 4 Sentence 3 No. 2 SGB II (cf. Federal Social Court, Judgment of February 24, 2011 – B 14 AS 81/09 R).
2. The conditions for the exception clause in Section 7 Paragraph 4 Sentence 3 No. 2 of the German Social Code, Book II (SGB II) are not met in this case because the applicant is not employed for at least 15 hours per week under the usual conditions of the general labor market. According to the clear wording of the law, the actual performance of such employment ("is employed") and not merely the intention to perform such employment is a prerequisite for this exception.
3. For the applicant, this means that, as a prisoner who is excluded from benefits under the German Social Code, Book II (SGB II) in individual cases, he may, at least in principle, have a claim to benefits to guarantee a dignified minimum standard of living under the German Social Code, Book XII (SGB XII). The fundamental entitlement to benefits under the SGB XII also arises indirectly from the provision on local jurisdiction in Section 98, Paragraph 4 of the SGB XII.
4. In social court jurisprudence, it is also generally recognized that persons who are in prison may have claims under the German Social Code, Book XII (see, e.g., Federal Social Court, judgment of December 12, 2013 – B 8 SO 24/12 R).
5. However, whether and, if so, to what extent the applicant has a claim for a loan under the German Social Code, Book XII (SGB XII) with regard to one of the expenditure items he is requesting, can remain undecided in the present proceedings, because the applicant has in any case not credibly demonstrated his need for assistance.
Source: socialcourtsability.de
3.12 – LSG Saxony, decision of 31.03.2015 – L 3 AS 148/15 B ER – legally binding
Provisional basic income support benefits under the German Social Code, Book II (SGB II) – Nationals of the Republic of Indonesia
Guiding Principles (Author)
1. The applicant is not excluded from benefits as a student under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II). She can claim benefits to secure her livelihood for herself and, pursuant to Section 7 Paragraph 2 Sentence 1 of the SGB II, for the child living with her in a household unit.
2. The residence permit pursuant to Section 16 of the Residence Act and the permit to engage in employment not exceeding a total of 120 days or 240 half days per year, as well as to engage in student part-time work (see Section 16 Paragraph 3 of the Residence Act) meets the requirements for legal employability within the meaning of Section 8 Paragraph 2 of the German Social Code, Book II (see Higher Social Court of Rhineland-Palatinate, decision of February 12, 2010 – L 1 SO 84/09 B ER, L 1 SO 95/09 B).
3. The applicant has credibly affirmed under oath that, due to the care and upbringing of her child, she is currently not pursuing her studies and will not complete any coursework or examinations during her leave of absence (cf. Federal Social Court [BSG], judgment of March 22, 2012 – B 4 AS 102/11 R and Federal Social Court [BSG], judgment of August 22, 2012 – B 14 AS 197/11 R – according to which a student is not excluded from benefits to secure their livelihood pursuant to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) during a leave of absence semester if, for organizational reasons, they are no longer affiliated with the university during this time, or if, although organizational affiliation still exists, they are not actually pursuing their studies).
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – SG Augsburg, Judgment of 20.11.2014 – S 16 AS 1480/10
Basic income support for job seekers – illegality of the request to apply for an early retirement pension or the pension application by the basic income support provider – binding pension decision – review procedure pursuant to Section 44 of the German Social Code, Book X
Even if the pension insurance provider has already approved a pension applied for by the job center, the action is admissible as a declaratory judgment action pursuant to Section 55 Paragraph 1 Number 1 of the Social Court Act (SGG). If the substitute performance were to be considered a completed administrative act in this respect, the action would also be admissible as a declaratory judgment action pursuant to Section 131 Paragraph 1 Sentence 3 of the Social Court Act (SGG).
Guiding Principles by Attorney Daniel Zeeb:
1. A request by the SGB II agency pursuant to Section 12a of the SGB II to apply for early retirement constitutes an administrative act. Discretion must be exercised before issuing the administrative act, which did not occur in this case.
2. Not every failure to comply with a pension request triggers the right to take substitute action. Rather, this right, enshrined in Section 5 Paragraph 3 of the German Social Code, Book II (SGB II), requires a request that was otherwise lawful but was not complied with, which is not the case here.
3. Even after a legally binding decision on the pension, the benefit recipient had a legitimate interest in establishing the illegality of the right of the benefit provider to carry out substitute performance pursuant to Section 5 Paragraph 3 of the German Social Code, Book II (SGB II). However, the plaintiff intends to initiate a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X), which promises sufficient success.
This decision goes beyond the jurisprudence of the Federal Social Court (BSG, decision of June 12, 2013 – B 14 AS 225/12 B). The Federal Social Court had rejected the appeal against the denial of leave to appeal because it had not been sufficiently demonstrated what legal interest existed, in particular, what the possibility of a favorable decision was based on. This legal interest is now affirmed here, as long as a modification of the pension can be achieved within the framework of a review procedure.
Note by attorney Daniel Zeeb:
The subsequent review application filed with the pension insurance provider pursuant to Section 44 of the German Social Code, Book X (SGB X), was also successful. The pension will now be granted from the later regular commencement date of the old-age pension, without deductions, and at a correspondingly increased amount.
4.2 – SG Potsdam, decision of 29.08.2014 – S 19 AS 1797/14
Basic income support under the German Social Code, Book II (SGB II) – Request to submit an application for early retirement pension
Even the request for an old-age pension requires a discretionary decision. It is not sufficient to simply consider whether a case category listed in the Hardship Regulation applies (see also LSG Berlin-Brandenburg, decision of 27 September 2013 – L 28 AS 2330/13 B ER, SG Dresden, decision of 21 February 2014 – S 28 AS 567/14 ER, contra LSG North Rhine-Westphalia, decision of 22 May 2013 – L 19 AS 291/13 B ER).
Guiding Principles (Author)
1. When the job center decides whether to request a recipient of benefits under the German Social Code, Book II (SGB II), to apply for early retirement after reaching the age of 63, the job center must, in its discretionary decision, not only include the categories of cases arising from the hardship regulation, but also other relevant aspects that might argue against early retirement in the individual case.
2. A request to claim an old-age pension by a recipient of benefits under Book II of the German Social Code (SGB II) is also permissible if receiving the pension only leads to a reduction in the need for assistance and not to its complete elimination.
3. Individual case for assessing the legality of a job center's discretionary decision in the context of a request for early application for old-age pension to a benefit recipient under the German Social Code, Book II (SGB II) (here: error-free discretionary decision affirmed).
4. 3 SG Hannover, decision of 14.04.2015 – S 70 AS 1178/15 ER
On the exclusion of EU citizens from benefits pursuant to Section 7 Paragraph 2 Sentence 2 No. 2 SGB II
The Bulgarian applicant is entitled to provisional benefits under the German Social Code, Book II (SGB II).
Principle (Juris)
§ 7 para. 2 sentence 2 no. 2 SGB II is to be interpreted in conformity with the constitution, taking into account the fundamental right to a dignified minimum standard of living (Art. 1 para. 1 GG in conjunction with the social state principle of Art. 20 para. 1 GG).
Source: www.rechtsprachung.niedersachsen.de
4.4 – SG Aachen, decision of 20.04.2015 – S 11 SF 11/15 E
Costs incurred outside of court must be documented.
Guiding principle (author):
1. Private individuals who wish to claim extrajudicial costs (such as postage costs) after winning a legal dispute must provide detailed proof of these costs.
2. A regulation applicable to lawyers, according to which fees for postal and telecommunications services can be charged at a flat rate of EUR 20.00, is not applicable to private individuals. Contrary to a 2013 decision by the Frankfurt/Main Social Court circulating on the internet, extending this regulation to private individuals is also not warranted.
3. Such a transfer would require comparable initial situations. However, this is not the case. The flat-rate system for lawyers entrusted with the commercial handling of legal transactions is based on the legislator's desire to compensate the necessary maintenance and use of a telecommunications infrastructure in the most practical way possible – namely, as a flat fee. Private individuals, however, are not required to maintain such an infrastructure for handling legal matters. They can reasonably be expected to provide specific documentation of incurred costs.
The decision is legally binding.
Sources: sozialgerichtsbarkeit.de and sozialgerichtsbarkeit.de
Note: a. A. SG Frankfurt v. 11.03.2014 – S 24 AS 1074/10
Claim a flat-rate expense allowance of EUR 20 for successful appeals!
In a recent ruling (SG Frankfurt v. 11.03.2014 – S 24 AS 1074/10), the Frankfurt Social Court ordered the job center to pay a flat-rate expense allowance of 20 EUR to the self-representing appellant after a successful appeal and legal action.
Published in the Thomé Newsletter on April 3, 2014: www.harald-thome.de
4.5 – Osnabrück Social Court, judgment of 28 April 2015 – S 31 AS 41/14 – not legally binding
A mother is entitled to the additional allowance for single parents even if she remarries.
Guiding Principles (Author):
The mother cared for her firstborn daughter alone. It was also taken into account that the plaintiff's husband speaks no German and the daughter speaks only a little Russian. No responsibility in connection with the child's upbringing could be established.
Source: Press release of the Osnabrück Social Court No. 1/2015 dated April 28, 2015: www.sozialgericht-osnabrueck.niedersachsen.de
Note:
See also SG Konstanz, judgment of 21.01.2014 – S 4 AS 1904/12 – according to which the standard allowance for single persons (100%) and the additional allowance for single parents must also be paid when moving in with a new partner.
4.6 – SG Aachen, decision of 20.03.2015 – S 11 AS 169/15 ER
The job center is ordered by way of a preliminary injunction to grant the applicant (an Austrian citizen) the current standard benefit rate – no grounds for an injunction regarding the assumption of costs for accommodation and heating according to § 22 SGB II – employee status
Guiding principles (author):
An Austrian citizen is entitled to the current standard allowance within the framework of the balancing of interests.
Source: socialcourtsability.de
Note:
Cf. Social Court Lüneburg, decision of 21 May 2014 – S 27 AS 156/14 ER – and Higher Social Court NRW, decision of 29 January 2015 – L 6 AS 2085/14 B ER – and – L 6 AS 2086/14 B – legally binding – Austrian citizens are entitled to provisional benefits to secure their livelihood under the German Social Code, Book II (SGB II). Austrian citizens are entitled to unemployment benefit II (ALG II) within the framework of the balancing of interests.
5. Decisions of the social courts on employment promotion law (SGB III)
5.1 – Duisburg Social Court, judgment of 29 January 2014 – S 33 AL 363/13 – Appeal pending before the North Rhine-Westphalia Higher Social Court under file number L 20 AL 135/14
Unemployment benefit entitlement – fulfillment of the qualifying period – compulsory insurance relationship – prisoner in a special type of public-law employment relationship – consideration of work-free weekends and public holidays as periods of compulsory insurance for prisoners
Principle (Author)
1. The applicant fulfills the required qualifying period for entitlement to unemployment benefits by performing his insurable work during the period of detention.
2. The Federal Social Court (BSG) has already expressly approved the previous consideration of work-free weekends and public holidays as periods of compulsory insurance for prisoners, based on the situation of employees, and justified this with the calculation of contributions for the prisoners' insurance period in Section 1 of the Prisoners' Contribution Ordinance, according to which each working day is valued at one-twenty-fifth of the contribution assessment basis for one year (see BSG judgment of November 7, 1990, file number: B 9b 7RAr 112/89; see also LSG NRW judgment of October 15, 2008, file number: L 12 AL 40/07 and of March 18, 2003, file number: L 1 AL 18/02).
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Social Assistance (SGB XII)
6.1 – North Rhine-Westphalia State Social Court, decision of 22 April 2015 – L 9 SO 496/14 B – legally binding
Granting of legal aid to a Polish national who is a Union citizen and is probably not subject to the exclusions from benefits under Section 23 Paragraph 3 Sentence 1 of the German Social Code, Book XII, because the factual prerequisites for such exclusion are not met.
Guiding Principles (Author):
Even the applicant's lack of a substantive right of residence does not lead – not even by way of an "a fortiori" argument under Section 23 Paragraph 3 Sentence 1 Alternative 2 of the German Social Code, Book XII (SGB XII) – to an exclusion from social assistance benefits (cf. regarding the parallel provision of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), Higher Social Court of North Rhine-Westphalia, Judgment of October 10, 2013 – L 19 AS 129/13; leaving open the question, Federal Social Court, Judgment of November 18, 2014 – B 8 SO 9/13 R).
Source: socialcourtsability.de
6.2 – North Rhine-Westphalia State Social Court, Judgment of 19 March 2015 – L 9 SO 309/14
Social assistance – accommodation and heating – tenancy agreement between relatives – no serious intention on the part of the parents to fulfill the tenancy agreement
Whether and to what extent an adult child living with their parents incurs actual expenses for accommodation and heating depends essentially on whether they are subject to a validly agreed (sub-)rent claim by their parents, i.e., whether, firstly, a valid tenancy agreement has been concluded and, secondly, whether the landlord actually intends to enforce it (cf. LSG Schleswig-Holstein, Judgment of 29.06.2011 – L 9 SO 16/10).
Guiding principles (author):
The applicant was not subject to any rent claim from her parents, since although a valid lease agreement was concluded through the appointment of a supplementary guardian, it cannot be assumed that the parents had a genuine intention to implement it.
Source: socialcourtsability.de
Note:
See Federal Social Court (BSG), judgment of 23 March 2010 – B 8 SO 24/08 R – There is no entitlement to benefits for accommodation and heating if the validly concluded tenancy agreement is not actually executed or if the resulting rent claims are permanently deferred.
6.3 – North Rhine-Westphalia State Social Court, decision of 14 January 2015 – L 20 SO 503/14 B ER – legally binding.
On the entitlement to assistance to overcome special social difficulties during incarceration (here: assumption of rental costs).
Guiding Principles (Author)
1. The applicant's claim of imminent loss of housing after his release from prison generally falls under the category of special living conditions with social difficulties within the meaning of Section 67 of the German Social Code, Book XII (SGB XII); because the loss of housing is significantly more difficult for a released prisoner – similar to the loss of employment – to compensate for than for other citizens, even if he is not dependent on subsistence benefits (cf. Federal Social Court [BSG], judgment of December 12, 2013 – B 8 SO 24/12 R).
2. However, it has not been credibly demonstrated that these social difficulties are of a "special" nature, i.e., that – according to the prognostic decision to be made in this respect with regard to the serving of this prison sentence in the event of the loss of the occupied apartment – "special" social difficulties are to be expected.
3. The mere fact that the applicant claims to have no close social contacts or family ties is not sufficient in this respect.
4. It is also generally expected of a single person to rent new accommodation after their release from prison – possibly with the help of a social worker and upon presentation of a rent payment guarantee from the SGB II provider (cf. OVG Berlin, decision of 13.12.1989 – VI S 77.79).
5. A different conclusion may be reached if further circumstances arise that give rise to concerns about the inmate's permanent isolation if they are not allowed to keep their apartment. This might be the case, for example, if the individual, due to their personality structure or mental disorders (see, in this regard, the case of a single inmate suffering from a delusional disorder in the form of querulous paranoia, which was remanded by the Federal Social Court, loc. cit., for further clarification; see also the Higher Administrative Court of Berlin, decision of December 13, 1989 – VI S 77.79, concerning an incapacitated person, possibly mentally disabled and unable to work, who was previously homeless) or other behavioral problems or drug or alcohol addiction, has difficulty establishing or maintaining contact with their environment.
Source: socialcourtsability.de
7. Decisions of the State Social Courts on Asylum Law
7.1 – Bavarian State Social Court, decision of 13 April 2015 – L 8 AY 6/15 B ER – legally binding
1. Applicants who have been residing in the Federal Republic of Germany as asylum seekers for several years receive basic benefits in addition to accommodation in accordance with Section 3 AsylbLG (2015: pocket money and food allowance amounting to EUR 153.49 and EUR 136.21 respectively).
2. A revocation notice may be issued due to assets (car with a value of EUR 980).
3. The Higher Social Court (LSG) may determine that an objection to a depriving administrative act has suspensive effect. It may also order the respondent to provide the deprived benefits by way of remediation.
Guiding principles (Juris)
1. An application for preliminary legal protection does not need to be described in detail with the correct legal terminology by applicants who are not represented by a lawyer.
2. In appeal proceedings, an administrative act granting a benefit or service was previously revoked or rescinded. This also applies under the Asylum Seekers' Benefits Act (AsylbLG), provided the grant was issued by a continuing administrative act.
3. If the authority disregards the suspensive effect, the application for a determination of the suspensive effect is admissible in accordance with Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG).
4. If the authority completely misjudges the suspensive effect, the suspension of enforcement pursuant to Section 86b Paragraph 1 Sentence 2 of the Social Court Act (SGG) is warranted.
5. As of March 1, 2015, pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the provisions of the German Social Code, Book XII (SGB XII) apply to benefit recipients who have resided in Germany for 15 months without significant interruption. This also includes the protected amounts according to Section 1 of the Implementing Regulation to Section 90 of the SGB XII.
6. Regarding the interruption of the advance benefit period within the meaning of Section 2 AsylbLG due to detention.
Source: socialcourtsability.de
8. Commentary by Judge Dr. Steffen Luik of the Baden-Württemberg State Social Court (RiLSG BWB) on the Federal Social Court (BSG) judgment of May 14, 2014: Loss of entitlement to unemployment benefits due to repeated unexcused absences from appointments
. Commentary on: BSG 11th Senate, Judgment of May 14, 2014 – B 11 AL 8/13 R – Author: Dr. Steffen Luik, Judge at the Baden-Württemberg State Social Court (RiLSG)
Loss of entitlement to unemployment benefits in case of repeated unexcused absence from a reporting appointment
Guiding Principles
1. Three consecutive unexcused absences from a scheduled appointment do not necessarily justify the assumption that the recipient of unemployment benefits is no longer available for work, even if the appointment was properly scheduled each time. The law does not provide for such an automatic conclusion.
2. The failure of an unemployed person to appear after receiving a summons to report can be considered a significant indication of unavailability and a breach of the unemployed person's obligations to provide information and appear in person, as required by the cooperation regulations applicable to all social benefits. This can be grounds for denying or withdrawing benefits. The general cooperation regulations apply in this respect alongside the specific regulations of the German Social Code, Book III (SGB III), regarding summonses to report.
Read more at Juris: www.juris.de
9. The timing of the Hartz IV application should be carefully considered.
If a recipient of Hartz IV benefits faces financial losses due to submitting an application too early, they cannot simply withdraw it and resubmit it shortly afterward at a more favorable date. This was decided by the Federal Social Court (BSG) in Kassel on Friday, April 24, 2015 (Case No.: B 4 AS 22/14 R). The court thus rejected the appeal of a former prisoner.
Read more: www.juraforum.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
