1. Decisions of the Federal Social Court of 29 April 2015 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 29 April 2015 – B 14 AS 31/14 R
The job center must issue a final benefit decision
Guiding principle (author):
If the job center provisionally grants benefits under the German Social Code, Book II (SGB II), it must issue a final benefit decision after clarifying the income situation. The job center cannot revoke or withdraw the provisional benefit grant.
Source: juris.bundessocialgericht.de
2. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
2.1 – Hessian State Social Court, Judgment of 13 May 2015 – L 6 AS 133/14 – Appeal pending before the Federal Social Court under file number B 14 AS 29/15
Basic income support for job seekers – integration agreement – inadequate determination of benefits for application costs
Regarding the standard of review and the depth of review for sanctioning a violation of an application obligation imposed by an integration agreement.
The integration agreement must include a commitment to cover application costs if the job center requires job application efforts.
Guiding principle (author)
1. If the integration agreement specifies the obligation to make job applications individually by a fixed number of applications to be proven, the integration agreement must also contain a corresponding specification regarding cost reimbursement.
2. In light of all this, it remains open whether the concerns regarding the unconstitutionality of the sanctions system will prevail (see decision of the Social Court of Gotha of 26 May 2015 – S 15 AS 5157/14; see also decision of the Senate of 8 September 2014 – L 6 AS 74/14 B ER).
Source: socialcourtsability.de
Note:
See also LSG Hessen, judgment of 13.05.2015 – L 6 AS 132/14 – appeal pending before the BSG under file number B 14 AS 26/15 R
2.2 – North Rhine-Westphalia State Social Court, decision of 20 August 2015 – L 12 AS 1180/15 B ER – legally binding
Italian nationals are not entitled to benefits under SGB II or SGB XII – basic income support for job seekers: exclusion of EU citizens; proof of job search efforts is a prerequisite for receiving benefits
Principle (Author):
The exclusion from benefits under Section 7, Paragraph 1, Sentence 2, No. 2 of the German Social Code, Book II (SGB II) also applies to EU citizens who reside in Germany without a substantive right of residence. The Senate adheres to its position in this regard, which it set forth in particular in its decision of April 28, 2015, L 12 AS 727/15 B ER. It thus aligns itself with the established case law of the 2nd Senate of the Higher Social Court of North Rhine-Westphalia (see, for example, decisions of December 3, 2014, L 2 AS 1623/14 B ER, April 9, 2015, L 2 AS 2247/14 B ER, and April 16, 2015, L 2 AS 2299/14 B ER).
Source: socialcourtsability.de
Legal tip:
The North Rhine-Westphalia State Social Court (LSG NRW) holds a different view, ruling under file number L7 AS 1161/14 – Anyone who previously worked in Germany is entitled to benefits.
Hartz IV – Judges strengthen the position of immigrants. Read more at: www.derwesten.de
Note:
a. A. LSG Berlin-Brandenburg, decision of 06.03.2015 – L 28 AS 354/15 B ER – Italian applicant is entitled to provisional ALG II benefits (deduction of standard benefit 20%) within the framework of the balancing of consequences.
2.3 – North Rhine-Westphalia State Social Court, decision of 19 August 2015 – L 19 AS 1265/15 B ER, L 19 AS 1266/15 B – legally binding.
Homeless Bulgarian applicant is entitled to the standard rate for single adults pursuant to Section 20 Paragraph 2 of the German Social Code, Book II (SGB II) – balancing of interests – exclusion of benefits for foreigners residing for the purpose of seeking employment – non-application in the absence of a substantive right of residence – requirement of accessibility for the entitlement of a homeless person to benefits
Guiding principle (author)
1. It follows from § 36 sentence 4 SGB II that even when the requirements of § 7 para. 4a SGB II are invoked, homeless persons should be able to receive unemployment benefit II (BT-Drucks. 16/14120, p. 27 on No. 31).
2. The applicant is a Union citizen without a substantive right of residence, but is (formally) legally residing in the Federal Republic of Germany due to the lack of a determination of loss of right of residence pursuant to Sections 2(7), 5(4), 6 of the Freedom of Movement Act/EU.
3. According to the established case law of the Senate (see judgments of the Senate of 01.06.2015 – L 19 AS 1923/14 -, of 05.05.2014 – L 19 AS 430/13 (appeal pending B 14 AS 33/14 R) and of 10.10.2013 – L 19 AS 129/13 (appeal pending B 4 AS 64/13 R); decision of 20.03.2015 – L 19 AS 116/15 B ER with further references), the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is not applicable to this group of persons (contra: Higher Social Court of Baden-Württemberg, decision of 29.06.2015 – L 1 AS 2338/15 B ER -; Higher Social Court of Baden-Württemberg). Saxony-Anhalt, decision of 04.02.2015 – L 2 AS 14/15 B ER).
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision of 20 July 2015 – L 10 AS 193/15 B ER – legally binding
assumption of rent arrears – homelessness – regulatory order – discretion – obligation to issue a new decision
Guiding principle (author):
The exercise of discretion by the job center suffers from significant deficiencies in its assessment; the job center should have been obliged to issue a new decision.
Source: socialcourtsability.de
2.5 – LSG Berlin-Brandenburg, decision of 01.07.2015 – L 9 AS 1583/14 ER
Basic income support for job seekers – referral to priority benefits – integration agreement
Principle (Juris)
Regarding the order for the suspension of enforcement of a lawsuit against the job center's request to apply for a reduced old-age pension from the German Pension Insurance.
Source: socialcourtsability.de
Article by attorney Kay Füßlein, Berlin: Unclear legal situation? No hasty decisions by the Job Center! Read more: www.ra-fuesslein.de
2.6 – Lower Saxony-Bremen State Social Court, Judgment of 24 March 2015 - L 7 AS 1031/13
Social assistance – separated parents – child's changing residence – entitlement to social assistance only proportionally for the days spent in the respective household
Principle (Juris):
For the days on which a child stays in the (temporary) household with the parent entitled to visitation, their entitlement to social assistance in the (main) household is reduced proportionally.
Source: www.rechtsprachung.niedersachsen.de
Note:
Similarly, Berlin Social Court, decision of 23 June 2015 – S 127 AS 10024/15 ER, not published
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Aachen Social Court, Judgment of 01.07.2015 – S 14 AS 15/15 – legally binding
Basic income support for job seekers – household unit – community of support and responsibility (affirmed here) – presumption rule
Guiding principles (author)
1. The particularly close living arrangement without separation of living and sleeping areas also supports the existence of an economic community that goes beyond a mere shared household (cf. Hess LSG, decision of June 21, 2013 – L 9 AS 103/13 B ER).
2. Health costs and debts not borne by the partner are outside the scope of the concept of household management. Assuming these costs for the partner, as well as paying off the other's debts or having mutual legal or actual authority to dispose of their income or assets, is not a necessary component of a "marriage-like" joint household and financial management, although conversely, it is a strong indicator.
Source: socialcourtsability.de
3.2 – Social Court Lüneburg, Judgment of 13 November 2013 – S 37 AS 1787/12
Regarding the consideration of repair or rental car costs when calculating the amount of income to be taken into account.
Guiding principles (author)
on the consideration of repair or rental car costs in the amount of income to be taken into account (here negative).
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Berlin-Brandenburg State Social Court, Judgment of 18 June 2015 – L 23 SO 268/12
Appropriateness of contributions to private health and long-term care insurance – Section 32 Paragraph 5 Sentence 1 SGB XII – basic tariff reasonable – no claim for past periods – self-procurement
In principle, expenses in the amount of the so-called basic tariff are appropriate within the meaning of Section 32 Paragraph 5 of the German Social Code, Book 12 (SGB 12), which corresponds to the level of benefits of statutory health insurance and is only in line with the subsistence-securing character of social assistance benefits to this extent.
Guiding principle (author):
1. Contributions payable for contracts under the standard tariff (basic tariff) are considered appropriate within the meaning of Section 32 Paragraph 5 of the German Social Code, Book XII (SGB XII). Within the scope of application of the SGB XII, the contribution rate resulting from Section 12 of the Insurance Supervision Act (VAG) is to be considered appropriate.
2. In cases of ongoing need, it can be assumed that the actual need was met in the past through self-procurement using the lump-sum benefits provided, without further proof. However, this only applies to benefits that do not merely provide a standardized lump sum to cover the needs (such as the standard needs benefits under Section 20 of the German Social Code, Book II (SGB II) or standard needs benefits under Section 27a of the German Social Code, Book XII (SGB XII)), but not to any additional needs under Section 30 Paragraph 5 of the German Social Code, Book XII (SGB XII) or special needs under Section 32 Paragraph 5 of the German Social Code, Book XII (SGB XII).
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Karlsruhe, Judgment of 14 August 2015 – S 1 SO 1225/15 – not legally binding
Dissolution of a cohabiting partnership solely due to the admission of one partner to a nursing home and the mere refusal of the other partner to pay the uncovered nursing home costs from their assets – The assumption of a fictitious depletion of assets is not legally permissible in the absence of a legal basis.
Guiding Principles (Author)
1. The mere (permanent) admission of one partner in a cohabiting relationship to a nursing home is not sufficient to justify the dissolution of this relationship within the meaning of social welfare law. Rather, it is also necessary for one partner to have expressed the outward intention of separating from the other partner and no longer wishing to continue the relationship.
2. The mere refusal of the partner remaining in the previously shared residence of a cohabiting partner to cover the uncovered nursing home costs of the other partner from their assets does not in itself lead to the termination of the cohabiting partnership.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Employment Promotion (SGB III)
6.1 – Schleswig-Holstein State Social Court, Judgment of 19 June 2015 – L 3 AL 55/12 – Appeal pending before the Federal Social Court under file number B 11 AL 4/15 R
Suspension of unemployment benefit entitlement – Holiday pay – Cross-border workers – Payment of Danish holiday pay after termination of employment in Denmark – Comparability
Guiding principle (author):
Holiday pay accumulated in Denmark is to be classified as holiday compensation within the meaning of Section 143 Paragraph 2 of the German Social Code, Book III (SGB III).
Source: socialcourtsability.de
7. Decisions of the social courts on employment promotion (SGB III)
7.1 – SG Landshut, Judgment of 28.07.2015, S 13 AL 141/14
Matters concerning the Federal Employment Agency
Guiding Principles (Juris):
The German Social Code, Book III (SGB III), distinguishes between an employment relationship in the sense of social security law and an employment relationship in the sense of benefit law. The wording of Section 138 Paragraph 3 of the SGB III clearly states that an employment relationship in the sense of benefit law is also excluded – and thus no entitlement to unemployment benefits exists – if family assistance is provided for 15 hours or more per week. Not only the performance of an employment relationship in the sense of social security law exceeding the 15-hour limit, but also activity as a family member assisting in a family business, for which no social security contributions are payable, precludes availability for social security benefits if it is performed for 15 hours or more.
Source: socialcourtsability.de
8. Legal Remedies Against the Cost Reduction Demand? – Article by Roland Rosenow, Freelance Lecturer in Social Law, Social Law in Freiburg,
August 27, 2015: Legal remedies against the cost reduction demand?
The appropriateness of housing costs is one of the most controversial issues in the basic income support law of the German Social Code, Book II (SGB II) and Book XII (SGB XII). Now, in case B 4 AS 27/15 B, the Federal Social Court (BSG) has for the first time granted leave to appeal on the question of whether legal recourse is possible against a demand to reduce housing costs. In the first instance, both an action for annulment against the cost reduction demand and a declaratory judgment action had been filed. Both actions were consolidated and dismissed by the first and second instances. The appeal proceedings, pending under file number B 4 AS 36/15 R, will now focus on whether the cost-reduction request, contrary to the prevailing opinion, should be considered an administrative act (§ 31 SGB X) (in which case an objection and legal action would be possible), or whether, in response to the cost-reduction request, an action for a declaratory judgment that no obligation to reduce costs exists is admissible (§ 55 SGG). If both questions are answered in the negative, it will then be necessary to clarify whether and, if so, how this would be compatible with the constitutional guarantee of access to justice (Art. 19 para. 4 GG).
Source: www.sozialrecht-in-freiburg.de (News)
9. End of family insurance – Individual insurance for recipients of unemployment benefit II from 1 January 2016
Family insurance coverage for recipients of unemployment benefit II ends on December 31, 2015. The previous priority of this family insurance no longer applies. You must become an independent member of a health insurance fund.
Due to an amendment to the German Statutory Health Insurance (GKV) Financial Structure and Quality Development Act, as of January 1, 2016, all recipients of unemployment benefit II (ALG II) are generally subject to mandatory statutory health and long-term care insurance. This does not apply in exceptional cases, namely if they were previously privately insured for health and long-term care. In this case, they are reassigned to the private health insurance system.
Purpose of the change
(read more): www.haufe.de
10. Higher Social Court of North Rhine-Westphalia: Cooperative shares as a "rental deposit" pursuant to Section 22 Paragraph 6 of the German Social Code, Book II
(SGB II) (Sections 22, 42a)
. The cooperative shares that the person in need of assistance must provide as a prerequisite for concluding a tenancy agreement are not a "rental deposit" within the meaning of Section 551 of the German Civil Code (BGB). Section 22 Paragraph 6 Sentence 3 of the German Social Code, Book II (SGB II) is applicable by analogy to a cooperative share that the person in need of assistance must assume as a prerequisite for renting an apartment in a housing cooperative.
LSG North Rhine-Westphalia, Judgment of 23.04.2015 – L 7 AS 1451/14
Comment by attorney Prof. Dr. Hermann Plagemann, Plagemann Rechtsanwälte Partnerschaft mbB, Frankfurt am Main
From beck-fachdienst Sozialversicherungsrecht 17/2015 dated August 21, 2015.
Source: rsw.beck.de
Legal tip:
a. A. LSG Schleswig-Holstein, decision of 24.02.2014 – L 3 AS 27/14 B ER, L 3 AS 27/14 B ER PKH and L 3 AS 57/14 B PKH – Cooperative shares constitute housing procurement costs which, according to § 22 para. 6 sentence 1 SGB II, must be granted as a loan by the transferring benefit provider.
11. Dispute over land ownership – Lawyer raises serious allegations against job center
Anyone who owns a house in Western Pomerania would be wise not to lose their job. Otherwise, the county's job centers threaten a forced sale before social benefits kick in. A lawyer now claims that the authorities are deliberately acting unlawfully.
Source: www.nordkurier.de
12. High Standards for Judgments in Hartz IV Fraud Cases, an article by attorney Mathias Klose.
A conviction for Hartz IV fraud requires a high degree of justification. In particular, the criminal judgment must state in a comprehensible manner whether and to what extent benefits were wrongfully obtained. It is not sufficient, for example, to simply state the amounts demanded back by the job center; rather, this must be determined in the judgment based on the relevant provisions of the German Social Code, Book II (SGB II).
The Higher Regional Court of Nuremberg states the following in a recent ruling: sozialrecht-aktuell.blogspot.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
