1. Decisions of the Federal Social Court of 16 June 2015 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 16.06.2015 – B 4 AS 37/14 R
Basic income support for job seekers – exclusion of trainees from benefits – abstract eligibility for funding – disabled person – receipt of training allowance according to § 104 SGB 3 aF – subsidy for uncovered accommodation costs – consideration of income – no deduction of the earned income allowance
Guiding Principles (Author)
1. Even as an apprentice receiving participation benefits, he is excluded from benefits to secure his livelihood within the meaning of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II).
2. In the hypothetical needs assessment, additional needs pursuant to Section 21 Paragraph 4 of the German Social Code, Book II (SGB II) are disregarded because they are training-related needs that are not intended to be covered by basic income support but rather by participation benefits.
3. Training allowance, as a needs-based, specific participation benefit for disabled persons, is not income from employment and therefore is not to be adjusted by an employment allowance or the employment exemption.
Source: juris.bundessocialgericht.de
1.2 – BSG, judgments of 16.06.2015 – B 4 AS 44/14 R and B 4 AS 45/14 R
June 16, 2015: The Federal Social Court (BSG) decides that a higher upper limit for reasonable costs applies in the area surrounding the city of Freiburg.
Source: www.socialrecht-in-freiburg.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 27/14 R
Job center must cover costs for travel to visit family
Guiding Principle (Author):
1. If the spouse and minor child of a benefit recipient live abroad, the travel expenses to their residence can constitute a special need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II). It is not necessary for the spouses to be legally separated.
2. The standard for maintaining separate residences—taking into account Section 1353 Paragraph 1 Sentence 2 of the German Civil Code (BGB), which obligates spouses to live together as a married couple—is whether, in the individual case, there are significant legal or factual obstacles to family reunification, both in Germany and abroad, that must be considered under the SGB II.
3. Section 20 Paragraph 4 Sentence 1 of the SGB II does not apply, not even by analogy, if, as in this case, one partner is excluded from benefits under the SGB II due to a lack of habitual residence in Germany. The reduction of the standard benefit to 90% is based on the assumption that costs are saved through joint household management. This assumption does not apply to the plaintiff's financial situation.
Source: juris.bundessocialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Hessian State Social Court, Judgment of 24.04.2015 – L 9 AS 828/14 – The appeal on points of law is admitted.
Basic income support for job seekers – sanction – legally binding approval notice – no reduction of the payment entitlement by operation of law – necessity of a revocation notice pursuant to Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book Ten (SGB X)
Regarding the necessity of a revocation decision based on § 48 SGB X in the case of an already granted and legally binding approval of full benefits during the reduction period.
Principle (Author)
1. When reducing basic income support benefits for breaches of obligations pursuant to Sections 31, 31a SGB II, a revocation decision pursuant to Section 48 Paragraph 1 Sentence 1 SGB X is still required, because the new regulations governing sanctions with effect from April 1, 2011, do not eliminate the need for a revocation decision of the original grant.
2. A sanction notice cannot ipso iure be given the meaning of a revocation notice pursuant to Section 48 of the German Social Code, Book X (SGB X), nor can it be reinterpreted as such pursuant to Section 43 of the German Social Code, Book X (SGB X).
Source: socialcourtsability.de
Practical tip – weighing the statute of limitations, an article by attorney Corinna Unger, SGB II newsletter, brief communications for practitioners 12/2014
The January 2014 newsletter already presented the decision of the Altenburg Social Court, which also reflects this legal opinion. Sometimes, benefit providers are now issuing notices stating that the original decision is to be revoked, but these notices do not specify which notices were issued. Therefore, this standard clause is insufficient to reduce the benefit claim. The right to revoke a decision only lasts for one year, so one should not act hastily; the possibility of review under Section 44 of the German Social Code, Book X (SGB X), applies to sanction notices retroactively for four years! It should be noted that an application for a preliminary injunction should always be filed if preliminary legal protection is sought.
Attorney Corinna Unger
3.2 – Schleswig-Holstein Higher Social Court, decision of 24 February 2014 – L 3 AS 27/14 B ER, L 3 AS 27/14 B ER PKH and L 3 AS 57/14 B PKH
Regarding the question of who is responsible for issuing the assurance pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), and whether the costs for acquiring cooperative shares constitute housing procurement costs within the meaning of Section 22 Paragraph 6 Sentence 1, first half-sentence, of the SGB II, or a rental deposit within the meaning of Section 22 Paragraph 6 Sentence 1, second half-sentence, of the SGB II.
Since the granting of an assurance pursuant to Section 22 Paragraph 6 of the German Social Code, Book II (SGB II) in preliminary legal protection proceedings constitutes a prejudgment of the main issue, it is only possible if compelling reasons require it in the individual case.
Obligation of the basic income support provider, through preliminary legal protection, to issue a guarantee for the assumption of the cooperative shares (housing procurement costs).
Principle
1. If preliminary proceedings are to fully assume the significance of the main proceedings, provided that otherwise a party's fundamental rights are permanently prevented, strict standards must be applied to the issuance of the requested preliminary injunction. In the case of an assurance pursuant to Section 22 Paragraph 6 of the German Social Code, Book II (SGB II), preliminary legal protection proceedings only make sense for the respective applicant if they have a binding effect on all parties in the long term, which in turn is only the case if they would have to be granted not just provisionally, but definitively (Berlin-Brandenburg Higher Social Court, decision of November 6, 2012 – L 25 AS 2712/12 B PKH; Berlin-Brandenburg Higher Social Court, decision of June 19, 2013 – L 25 AS 1137/13 B ER; Saxony-Anhalt Higher Social Court, decision of April 26, 2013 – L 5 AS 427/13 B ER). However, in light of the requirement of effective legal protection enshrined in Article 19 Paragraph 4 of the Basic Law, there is only room for such a final anticipation of the main issue, for which Section 86b Paragraph 2 of the Social Courts Act (SGG) does not provide a suitable basis according to its wording, if compelling reasons necessitate such a decision.
Such reasons exist here in exceptional circumstances.
2. Cooperative shares constitute housing procurement costs which, according to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), are to be granted as a loan by the transferring benefit provider.
Note 1:
According to the unanimous opinion in case law (LSG Saxony, decisions of September 29, 2008 – L 2 B 611/08 AS ER and of January 25, 2010 – L 3 AS 700/09 B ER; LSG Berlin-Brandenburg, judgment of May 11, 2010 – L 5 AS 25/09; LSG North Rhine-Westphalia, decision of June 8, 2011 – L 19 AS 958/11 B ER and decision of August 15, 2011 – L 19 AS 936/11 NZB) and in legal literature (see Berlit in Münder LPK-SGB II, 3rd ed., § 22 note 110; Luik in Eicher, SGB II, 3rd ed. 2013, § 22 para. 202; Geiger in Plagemann, Münchener Anwaltsbuch Sozialrecht, 4th ed., 2013, § 17 para. 189; Piepenstock, jurisPK § 22 para. 184; Kraus in Hauck/Noftz § 22 para. 294, Lauterbach in Gagel, SGB II/SGB III, 51st ed., § 22 para. 118, Frank in Hohn, Gemeinschaftskommentar-SGB II, VI-§ 22, para. 66) in principle to expenses within the meaning of § 22 para. 3 sentence 1 SGB II aF, now essentially identical in content to § 22 para. 6 sentence 1 SGB II.
Note 2:
Due to the comparable interests involved with regard to the security aspect, cases of acquiring cooperative shares are to be treated as equivalent to assuming a rental deposit (Piepenstock in juris PK-SGB II § 22 para. 184; similarly, Social Court Düsseldorf, decision of August 8, 2008 – S 28 AS 108/08 ER –, Higher Administrative Court Bremen, decision of July 27, 2007 – S 2 B 299/07, S 2 S 301/07 –, Social Court Schleswig, decision of May 27, 2008 – S 9 AS 239/08 ER –; Social Court Reutlingen, judgment of November 23, 2006 – S 3 AS 3093/06 –; for the whole: Scherney/Kohnke, Real Estate and Accommodation Costs, 2012, pp. 148 ff.).
3.3 – Berlin-Brandenburg State Social Court, decision of 04.06.2015 – L 29 AS 1128/15 B ER – legally binding
Bulgarian nationals are not entitled to basic income support under the German Social Code, Book II (SGB II) – proof of employment – cleaning worker – exclusion of benefits for foreigners residing in Germany for the purpose of seeking employment – subordinate, non-essential work
Guiding principle (author):
A monthly income of approximately 191 EUR does not yet confer employee status.
Source: socialcourtsability.de
Note:
Compare in particular the decisions of the Berlin-Brandenburg State Social Court of 17 February 2015 – L 31 AS 3100/14 B ER – remuneration of 140 EUR per month, the Hamburg State Social Court of 1 December 2014, L 4 AS 444/14 B ER – remuneration of 200 EUR per month – and the Lower Saxony-Bremen State Social Court of 3 August 2012, L 11 AS 39/12 B ER – gross income between 290 and 350 EUR/month, contra, presumably, the Hamburg Social Court. 05.01.2015 – S 10 AS 4323/14 ER – Whether employment is to be regarded as “completely subordinate and insignificant” within the meaning of the ECJ case law results from the assessment of the gainful employment in the specific individual case – In the specific case, employment as a temporary worker at the fast food chain with a weekly working time of ten hours and a monthly salary of EUR 150 does not constitute subordinate and insignificant employment and establishes employee status.
3.4 – Berlin-Brandenburg State Social Court, Judgment of 06.05.2015 – L 19 AS 1394/12
Income tax refund – no deduction of the tax advisor's invoice according to § 11 para. 2 sentence 1 no. 5 SGB II a. F. (§ 11b para. 1 sentence 1 no. 5 SGB II nF) – advertising expenses
Principle (Author):
1. Tax advisory fees are not a necessary expense related to generating income that can be deducted from income pursuant to Section 11 Paragraph 2 Sentence 1
version). 2. The earned income allowance pursuant to Sections 11 Paragraph 2 Sentence 1 No. 6 (old version) and 30 of the German Social Code, Book II (SGB II) is not deductible because it is not earned income (see also Federal Social Court [BSG], Judgment of February 11, 2015 – B 4 AS 29/14 R). The reduction of income due to the insurance allowance is not objectionable (see also Federal Social Court [BSG], Judgment of September 27, 2011, B 4 AS 180/10 R).
Source: socialcourtsability.de
3.5 – North Rhine-Westphalia State Social Court, decision of 10.06.2015 – L 6 AS 853/15 B ER legally binding
In the expedited proceedings, the Romanian citizen was to be provisionally granted benefits under the German Social Code, Book II (SGB II), including the costs for accommodation and heating.
Principle (Author):
1. An EU citizen may be provisionally granted cash benefits pursuant to Section 40 Paragraph 2 No. 1 of the German Social Code, Book II (SGB II) in conjunction with Section 328 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book III (SGB III), if the compatibility of a provision on which the decision on the application depends is the subject of proceedings before the Federal Constitutional Court or the European Court of Justice (ECJ).
2. No waiting for the eviction lawsuit, because significant disadvantages may be expected at an earlier stage, making waiting for a decision on the merits unreasonable (Higher Social Court of North Rhine-Westphalia, Decision of January 29, 2015 – L 6 AS 2085/14 B ER).
Source: socialcourtsability.de
3.6 – Bavarian State Social Court, Judgment of 19 May 2015 – L 11 AS 90/15
Letter from the job center regarding the appropriateness of the costs for accommodation and heating.
Guiding principle (author):
The notification of the unreasonable costs of accommodation and heating and the assumption of these costs does not constitute an administrative act.
Source: socialcourtsability.de
Note:
See also LSG NRW, decision of 16.01.2015 – L 2 AS 1848/14 B
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Karlsruhe, Judgment of 28 April 2015 – S 17 AS 599/14
Heating costs – electric heating (night storage heaters) – lack of separate consumption recording – admissibility of the estimate
Guiding principles (Juris):
When electricity consumption is recorded with only one meter, an estimate can be made to differentiate between electricity costs covered by the standard rate (household electricity) and electricity costs as accommodation costs (heating costs) (following LSG Baden-Württemberg, judgment of 02.03.2011 – L 2 SO 4920/09).
Source: socialcourtsability.de
Note from the court:
The item “basic price”, on the other hand, is not eligible for reimbursement as housing costs, since it is the basic fee for a simple electricity meter, which is also to be paid from the standard benefit by benefit recipients without an apartment with night storage heaters (cf. SG Hildesheim, Bv 8.9.2011 – S 54 AS 1404/11 ER).
Note:
Cf. SG Detmold, judgment of 28.03.2014 – S 28 AS 1935/12 – according to which, in the case of electric heating, the ongoing demand for heating can be determined without problems in contrast to the demand for other household energy and the energy for hot water preparation if the electricity supplier demands a separate advance payment specifically for the electricity consumed by the heating system.
4.2 – SG Aachen, decisions of 12.06.2015 – S 11 AS521/15 ER and S 11 AS 522/15
Principle: Social courts are not responsible for issuing a ban from the Job Center.
See also: Aachen Social Court: Banning order from the Job Center – Social Courts not competent: www.justiz.nrw.de
Note: a. A. BSG, decision of 21.07.2014 – B 14 SF 1/14 R – For disputes concerning a ban on entering premises issued by a benefit provider against an applicant for benefits under the German Social Code, Book II (SGB II), the social courts have jurisdiction (BSG, decision of 21.7.2014-B 14 SF 1/14 R).
Note: Full text of the decisions: sozialgerichtsbarkeit.de
sozialgerichtsbarkeit.de
4.3 – Social Court Magdeburg, Judgment of 15 November 2013 – S 47 AS 90013/09 – legally binding
Principle (Juris):
In the case of a member of the household who has income from an incapacity pension and is therefore not entitled to benefits under Section 41 of the German Social Code, Book XII (SGB XII) due to lack of need, Section 9 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) applies when determining the need for assistance.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – State Social Court of Saxony-Anhalt, decision of 20 April 2015 – L 8 SO 49/14 B ER – legally binding
Regarding the assumption of costs for accompaniment by an integration aide during the journey to school within the framework of integration assistance services according to the German Social Code, Book XII (SGB XII).
Principle (Juris):
There is no entitlement to integration assistance for the accompaniment of a pupil with a significant disability on the way to school by an integration aide, insofar as the school is attended as a private substitute school under state school law only within the framework of an exceptional permit at the request of the parents and the requirements for pupil transport are not met due to the distance between place of residence and school.
Source: socialcourtsability.de
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – Social Court Magdeburg, Judgment of 18 December 2012 – S 47 SO 90022/09
Administrative act with continuing effect in the case of an approval of social assistance benefits "until further notice"
Principle (Juris):
An approval "until further notice" generally indicates, from the perspective of the recipient, that assistance will be provided for an indefinite period after the decision is issued, and not just for the immediate future. If the social welfare agency intends to grant benefits only on a monthly basis, it must clearly state this in the approval notice using appropriate wording that is understandable to the recipient. Otherwise, it constitutes an administrative act with continuing effect.
Source: socialcourtsability.de
7. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
7.1 – Berlin-Brandenburg State Social Court, Judgment of 17 February 2015 – L 14 AL 7/11
Viability – Business start-up – Business plan – Obligation to provide truthful information
No start-up grant will be awarded for taking up self-employment as a photographer if the applicant has not proven the viability of the business start-up.
Guiding Principles (Author)
1. The decision regarding the viability of a business start-up is, by its very nature, a predictive decision which, in accordance with the purpose of the start-up grant – to enable the securing of livelihood and social security in the initial phase of the business start-up – must be made in close temporal proximity to the intended commencement of self-employment (cf. Schleswig-Holstein Higher Social Court, judgment of December 11, 2009 – L 3 AL 28/08).
2. For the prognosis decision to be made, only the actual circumstances at the relevant assessment date are to be considered. Thus, a negative prognosis decision that was correctly made based on the circumstances existing at the relevant assessment date does not become incorrect simply because the intended business start-up subsequently proves to be viable contrary to expectations (cf. Schleswig-Holstein Higher Social Court, judgment of December 11, 2009 – L 3 AL 28/08), which, incidentally, was not the case here.
Source: socialcourtsability.de
8. The North Rhine-Westphalia State Social Court (LSG NRW) recognizes grounds for an injunction in cases of rent arrears without a prior eviction lawsuit. Nilab Fayaz LL.M., lawyer from Neuss, comments on the decision of the 7th Senate of the LSG NRW of May 27, 2015, file number: L 7 AS 415/15 B ER.
Read more: tacheles-sozialhilfe.de
Note:
Also regarding – accommodation costs are to be awarded in preliminary injunction proceedings without the need for an eviction lawsuit: North Rhine-Westphalia Higher Social Court (LSG NRW), decision of May 4, 2015 – L 7 AS 139/15 B ER – legally binding; North Rhine-Westphalia Higher Social Court (LSG NRW), decision of January 29, 2015 – L 6 AS 2085/14 B ER; North Rhine-Westphalia Higher Social Court (LSG NRW), decision of March 25, 2015 – L 6 AS 419/15 B ER; North Rhine-Westphalia Higher Social Court (LSG NRW), decision of May 13, 2015 – L 6 AS 369/15 B ER – legally binding; North Rhine-Westphalia Higher Social Court (LSG NRW), decision of May 7, 2015 – L 7 AS 576/15 B ER – legally binding; LSG NRW, decision of 30.04.2015 – L 6 AS 296/15 B ER and – L 6 AS 297/15 B – legally binding and LSG NRW, decision of 10.06.2015 – L 6 AS 853/15 B ER legally binding
9. Higher Administrative Court of Münster, Judgment of 16 June 2015 – 8 A 2429/14 – Appeal allowed
No right to access the official telephone list of all employees of the Cologne Job Center
The 8th Senate of the Higher Administrative Court ruled today that there is no right to access the current telephone directory of the Cologne Job Center.
Due to the fundamental importance of the case, the Senate has granted leave to appeal to the Federal Administrative Court.
Case number: 8 A 2429/14 (First instance: Cologne Administrative Court 13 K 498/14)
Source: www.ovg.nrw.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
