1. Decisions of the Federal Social Court of 25 June 2015 on basic income support for job seekers (SGB II)
1.1 – Federal Social Court (BSG), Judgment of 25 June 2015 – B 14 AS 38/14 R
Reimbursement of preliminary proceedings costs – Objection to the enforcement notice of a main customs office regarding the recovery of basic income support benefits for job seekers
Principle (Editor)
1. The prerequisites for a claim for reimbursement of costs based on a direct application of Section 63 Paragraph 1 of the German Social Code, Book X (SGB X) regarding the reimbursement of costs in preliminary proceedings are not met, because the enforcement notices issued by the main customs office were not administrative acts.
2. There is also no entitlement to reimbursement of their expenses based on an analogous application of Section 63 of the German Social Code, Book X (SGB X). The principle that costs incurred through administrative proceedings are only reimbursed to the citizen in exceptional cases does not apply here.
3. The applicant's ability to defend herself against the enforcement notices in accordance with the constitutionally mandated equality of access to justice is ensured by the fact that she could claim legal aid for an application to the defendant for a stay of enforcement pursuant to Section 257 of the German Fiscal Code (AO) or legal aid for an application for a preliminary injunction pursuant to Section 86b Paragraph 2 of the German Social Courts Act (SGG) – as has happened.
Source: socialcourtsability.de
2. Decisions of the Federal Social Court of 29 April 2015 on basic income support for job seekers (SGB II)
2.1 – Federal Social Court (BSG), Judgment of 29 April 2015 – B 14 AS 19/14 R and B 14 AS 20/14 R
Social court proceedings – Reduction of unemployment benefit II due to failure to report – Separate appealability of the assessment notice – Constitutionality of the reduction by 30% of the relevant standard benefit rate
Chain sanctions without a renewed review are inadmissible.
Guiding principle (Editor):
1. Job centers may not summon unemployed people to appointments on a serial basis and then reduce their benefits if they fail to appear.
2. A maximum of three consecutive “failures to report” resulting in the same outcome of not attending the appointment may be sanctioned with reductions totaling up to 30 percent.
3. If the independent administrative act provided for in the German Social Code, Book II (SGB II), concerning the determination of a breach of duty and reduction of benefits, and the implementing administrative act are issued in separate notices – which is not mandatory – and if only the later implementing administrative act is challenged, while the earlier administrative act concerning the determination of a breach of duty and reduction of benefits becomes legally binding, it should be noted that, for a possible application under Section 44 of the German Social Code, Book X (SGB X), the retroactive provision in paragraph 4 thereof is irrelevant with regard to this determination administrative act, due to the lack of a dispute concerning the retroactive provision of social benefits.
4. Conversely, if only the determination of a breach of duty and reduction is contested and not a subsequent implementation decision, the time limit of Section 48 Paragraph 4 Sentence 1 in conjunction with Section 44 Paragraph 4 of the German Social Code, Book X (SGB X) and Section 40 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) does not preclude its subsequent correction if the action for annulment against the reduction decision is successful pursuant to Section 48 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book X (SGB X).
Source: socialcourtsability.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – State Social Court of Saxony-Anhalt, decision of 28 September 2015 – L 4 AS 429/15 B ER
Cost reduction request – heating costs – vacant apartments – atypical housing situation – family of 10 – the job center must support the person in need of assistance in asserting their rights against the landlord (cf. Federal Social Court, judgment of November 24, 2011, B 14 AS 15/11 R; judgment of February 17, 2015, B 14 KG 1/14 R) – moving house (currently) unreasonable
If the benefit provider demands cost-cutting measures from the person in need of assistance despite significant vacancy rates in the residential property, it cannot simply refuse to involve the landlord in its cost-cutting considerations.
Principle (Juris)
1. In cases of high vacancy rates, tenants can expect increased heating costs. According to civil law jurisprudence (see Federal Court of Justice, judgment of December 10, 2014, VIII ZR 9/14), tenants may have a claim against the landlord for a limitation of heating costs in cases of significant vacancy.
2. Before the social security agency responsible for benefits under Book II of the German Social Code (SGB II) can demand a cost reduction or relocation from the benefit recipient due to high heating costs, the circumstances of the individual case must be examined. In cases of significant vacancy exceeding 30% in the residential property and errors by the landlord in the utility billing, the social security agency responsible for benefits under Book II of the German Social Code (SGB II) is primarily obligated to advise and support the benefit recipient in asserting their claims against the landlord (for rent reduction) (§ 14 SGB I).
Source: socialcourtsability.de
3.2 – Thuringian State Social Court, Judgment of September 23, 2015 – L 4 AS 17/15 – legally binding – The appeal is granted.
Basic income support for job seekers – consideration and calculation of income – coincidence of pocket money from the Federal Volunteer Service with (other) earned income (here self-employment) – pocket money according to Section 2 No. 4 BFDG – not a designated income – no allowance for gainful employment.
On the adjustment of income when pocket money from the Federal Volunteer Service coincides with (other) earned income.
The allowances of €100 pursuant to Section 11b Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) and of €200 pursuant to Section 11b Paragraph 2 Sentence 1 of the SGB II in conjunction with Section 1 Paragraph 7 Sentence 1 of the Ordinance on Unemployment Benefit II (ALG II-V) are not to be cumulated when earned income and income from the Federal Voluntary Service coincide. This follows from the provision in Section 1 Paragraph 7 Sentence 4 of the ALG II-V, which stipulates that the deduction of the amounts pursuant to Section 11b Paragraph 1 Sentence 1 Numbers 3 to 5 of the SGB II should only be made once (see also Social Court Dresden, Judgment of August 28, 2013 – S 49 AS 2681/12).
Principle (Juris)
1. Income received by a recipient of basic income support as monthly pocket money while performing federal voluntary service is to be taken into account as income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
2. When income from employment and from performing federal voluntary service coincides, deductions must be claimed separately for each activity and – contrary to the wording of Section 1 Paragraph 7 Sentence 4 of the German Social Code, Book II (SGB II) – can also be applied concurrently. The increased allowance stipulated in Section 1 Paragraph 7 Sentences 1 to 3 of the SGB II constitutes the upper limit of the allowance.
3. The pocket money from the Federal Voluntary Service is not to be reduced by the additional allowance for employed persons pursuant to Section 11b Paragraph 1 Sentence 1 No. 6, Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
3.3 – North Rhine-Westphalia State Social Court, decision of 28 September 2015 – L 7 SF 535/15 ER legally binding
Social court proceedings – Order for suspension of enforcement – Discretionary decision – Weighing of interests – Unemployment benefit II – Examination of the benefit entitlement for the children of a Croatian national and their mother – Claim for an order
Principle (Editor):
1. The applicants are not subject to the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), because the mother's right of residence does not arise solely from the purpose of seeking employment, but exists as a permanent right of residence pursuant to Section 4a of the Freedom of Movement Act/EU. The exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the SGB II is therefore not applicable.
2. An analogous application of the exclusion of benefits to groups of persons not covered by the wording is already ruled out for legal methodological reasons.
3. In proceedings under Section 44 of the German Social Code, Book X (SGB X), aimed at reviewing the legality of a legally binding decision, generally higher standards apply to substantiating the claim for an injunction and the grounds for the injunction. In proceedings in favor of the applicant, the grounds for an injunction can only be affirmed if massive infringements on the applicant's social and economic existence with significant consequences for their living conditions are demonstrated. These conditions are met here.
4. The constitutional core of the German Social Code, Book II (SGB II), is the fundamental right to a guaranteed minimum standard of living that ensures human dignity, enshrined in Article 1, Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20, Paragraph 1 of the Basic Law (GG). Consequently, if individuals lack the necessary material resources to guarantee a life of human dignity because these resources cannot be obtained through employment, their own assets, or contributions from third parties, the state, within the framework of its mandate to protect human dignity and in fulfillment of its social welfare mandate, is obligated to ensure that the material prerequisites for this are available to those in need. As a human right, this fundamental right applies equally to Germans and foreign nationals residing in the Federal Republic of Germany (Federal Constitutional Court, judgment of 18 July 2012 – 1 BvL 10/10, 1 BvL 2/11, referring to Federal Constitutional Court, judgment of 9 February 2010 – 1 BvL 1/09 et al.; most recently Federal Social Court, judgment of 25 June 2015 – B 14 AS 17/14 R).
Source: socialcourtsability.de
3.4 – North Rhine-Westphalia State Social Court, Judgment of 24 September 2015 – L 7 AS 1880/12
Basic income support for job seekers – Cancellation of provisionally granted benefits – Offsetting according to Section 43 of the German Social Code, Book II (SGB II)
The provision of Section 328 Paragraph 3 Sentence 2 SGB III (Section 40 Paragraph 2 No. 1 SGB II) is not to be interpreted as meaning that the “final decision” is incidentally reviewed for its correctness.
Guiding principle (Editor):
1. If the affected party disagrees with the final decision, they must challenge it. If they are successful in a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X), the reimbursement notice can also be corrected pursuant to Section 44 SGB X. The crediting of the start-up grant is, moreover, substantively lawful (Federal Social Court [BSG], judgment of June 1, 2010 – B 4 AS 67/09 R; judgment of December 6, 2007 – B 14/7b AS 16/06 R).
2. The obligation to offset claims under Section 43 of the German Social Code, Book II (SGB II) does not preclude the assertion of a single claim for reimbursement. According to Section 43, Paragraph 1 of the SGB II, offsetting requires that a counterclaim, with which the authority intends to offset the principal claim, be due, which in turn requires that the counterclaim be legally binding or provisionally enforceable. This also follows from Section 387 of the German Civil Code (BGB), which Section 43 of the SGB II is modeled on. According to this provision, offsetting requires that the party asserting the offset can demand the performance due to them.
3. In the case of a provisional grant, the authority is not precluded from setting the final benefit at a lower amount for a reason unrelated to the provisional nature of the grant. According to the wording and purpose of Sections 40 Paragraph 2 No. 1 of the German Social Code, Book II (SGB II), and 328 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), the provisional grant of benefits under Sections 40 Paragraph 2 No. 1 SGB II and 328 Paragraph 1 Sentence 1 SGB III is intended solely to ensure the rapid securing of the recipient's livelihood in the recipient's interest and therefore has no binding effect beyond the provisional grant itself. Provisional grants aim (primarily in the interest of the recipient) exclusively at an interim solution and are accordingly designed to be replaced by a final decision once the conditions for the provisional grant cease to exist. Provisionally granted benefits are to be considered different from final benefits (Federal Social Court, judgments of April 29, 2015 – B 14 AS 31/14 R). The provision of Section 328 Paragraph 1 Sentence 2 of the German Social Code, Book III (SGB III), according to which the scope and reason for the provisional nature of the benefit must be stated, does not change this (Lower Saxony-Bremen State Social Court, judgment of March 19, 2014 – L 13 AS 325/11).
Source: socialcourtsability.de
3.5 – Bavarian State Social Court, decision of 01.10.2015 – L 7 AS 627/15 B ER
Exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II
Principle (Juris)
1. The exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) for foreigners whose right of residence is solely based on the purpose of job seeking complies with European legal requirements.
2. A right of residence or protection against expulsion under Article 14(4)(b) of Directive 2004/38 exists if a Union citizen has entered the country to seek employment, provided they can demonstrate that they are still seeking employment and have a reasonable prospect of being hired. This is precisely the case in which Article 24(2) of Directive 2004/38 permits a national provision to exclude someone from social assistance benefits (ECJ, Judgment of 15 September 2015, C-67/14, Alimanovic, paragraphs 57, 58). Section 7(1), second sentence, no. 2 of the German Social Code, Book II (SGB II) is such a provision.
3. There is no individual assessment as to whether, in the specific case, an undue burden is placed on the social assistance systems (ECJ, loc. cit., para. 59 ff).
4. 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 objectionable under constitutional law.
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Augsburg, Judgment of 30.09.2015 – S 8 AS 659/15 – Appeal is admitted.
Guiding principle (Editor)
1. The underlying concept of the basic income support provider for the city of Augsburg is coherent.
2. A concept within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is not a (norm-concretizing) administrative regulation (see also: Federal Social Court (BSG), judgment of October 19, 2010, B 14 AS 50/10 R; Thuringian Higher Social Court (LSG Thüringen), judgment of July 8, 2015, L 4 AS 718/14) and its application or effectiveness does not require publication.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Baden-Württemberg State Social Court, Judgment of 01.10.2015 – L 7 SO 118/14
Principle (Juris)
1. A significant indicator of the subjective element of the shared will to take responsibility for one another and to stand up for one another, which is required in addition to the objective characteristics of a cohabiting partnership, is the duration of the cohabitation (in this case more than 40 years).
2. A cohabiting relationship can be dissolved at any time without a legally regulated procedure. However, a sufficiently reliable determination is only possible if the decision to terminate is clearly documented by external circumstances. A mere declaration of having dissolved the partnership is not sufficient.
Source: socialcourtsability.de
5.2 – Thuringian State Social Court, Judgment of 09.09.2015 – L 8 SO 273/13 – legally binding
Principle (Juris)
1. With regard to the savings achieved through the provision of lunch in the sheltered workshop, the actual value of the service that otherwise covers the need is not to be taken as the basis, but rather the standard monthly rate is to be reduced by the amount normatively provided for in it for the need (following BSG, judgment of 11 December 2007 – B 8/9b SO 21/06 R, juris).
2. The update of the proportion of lunch in the daily requirement for the period from 1 July 2007 onwards is based on the 1998 Income and Expenditure Survey (EVS).
3. The monthly standard rate is to be reduced only for those days on which the person in need of assistance participated in lunch at the sheltered workshop, because the actual alternative coverage of needs is the determining factor (following BSG, judgment of December 11, 2007 – B 8/9b SO 21/06 R, juris).
4. Changes to benefits within the meaning of Section 44 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) only apply to changes that occur during a benefit period. However, if the social assistance provider has issued an unlawful administrative act that does not confer a benefit, and basic income support has therefore been wrongly withheld, the provisions of Section 44 of the German Social Code, Book X (SGB X) apply, and the decision must be revoked retroactively.
5. The deduction for self-employed or non-self-employed work pursuant to Section 82 Paragraph 3 Sentence 2 of the German Social Code, Book XII (SGB XII) is to be based on the gross amount of the income acquired thereby.
6. The employment promotion remuneration pursuant to Section 43 Sentence 4 of the German Social Code, Book IX (SGB IX) does not belong to the remuneration within the meaning of Section 82 Paragraph 3 Sentence 2 of the German Social Code, Book XII (SGB XII), from which the further allowance is to be calculated.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Employment Promotion (SGB III)
6.1 – Bavarian State Social Court, decision of 29.09.2015 – L 10 AL 212/15 NZB
Appeal denied due to lack of grounds for appeal – travel expenses for the job interview – funding from the placement budget pursuant to Section 44 of the German Social Code, Book III (SGB III)
Guiding principle (Editor)
1. The granting of funding is at the discretion of the authority.
2. Travel expenses will only be reimbursed upon presentation of the original receipts. This is stipulated in the integration agreements, and it is also appropriate to reimburse only actual costs incurred.
Source: socialcourtsability.de
7. Decisions of the social courts on employment promotion (SGB III)
7.1 – Social Court Landshut, Judgment of 14.09.2015 - S 13 AL 182/14
Matters of the Federal Employment Agency – Suspension of unemployment benefits – Waiting period upon leaving employment – Partial retirement agreement – Fault – Important reason
Principle (Juris)
1. According to the case law of the Federal Social Court (BSG) in its judgment of July 21, 2009 – B 7 AL 6/08 R – a valid reason within the meaning of the waiting period regulations may exist when concluding a partial retirement agreement if the plaintiff, at the time of signing the agreement, had the subjective intention of leaving working life immediately after the expiry of the partial retirement agreement and this intention also appears justified on the basis of objective considerations. The decisive factor for the assessment is the time of signing the partial retirement agreement.
2. The principles established by the Federal Social Court (BSG) are not met if the plaintiff did not obtain specific information from the pension insurance provider regarding the pension he can expect to receive at the time the partial retirement agreement expires before signing it. Relying on the general annual pension statement is usually insufficient, because only with precise knowledge of the expected pension amount can the intention to leave working life after the partial retirement period be considered sufficiently solidified to constitute a valid reason for terminating the employment relationship.
3. The fact that a plaintiff decides to remain available to the labor market immediately after learning of the newly created possibility of retiring without deductions after reaching the age of 63 can also be an indication that his original intention to leave working life after the expiry of the partial retirement agreement was not yet definitively established at the time the partial retirement agreement was concluded.
Source: socialcourtsability.de
8. Osnabrück Administrative Court: A Somali asylum seeker's action for failure to act was partially successful
VG Osnabrück, judgment of October 7, 2015 – 5 A 390/15
OSNABRÜCK. The Osnabrück Administrative Court today partially upheld the appeal of a Somali asylum seeker and ordered the Federal Office for Migration and Refugees (BAMF) to decide on the asylum application within three months of the judgment becoming legally binding. However, a "decision on the asylum application" in the sense that the court itself would (for the first time) decide on the plaintiff's asylum application is not possible (see background: Press release no. 19/2015 of October 7, 2015).
The judgment is not yet legally binding and can be appealed within one month of service by filing an application for leave to appeal with the Higher Administrative Court of Lower Saxony in Lüneburg.
Source: Press release 20/2015 dated October 14, 2015 – www.verwaltungsgericht-osnabrueck.niedersachsen.de
9. The truffle pig's strategy: Hartz IV for job-seeking EU citizens
Helpful resources here: www.harald-thome.de
10. Request for information from a person liable for maintenance – Commentary on LSG Saxony, Judgment of 16.07.2014 – L 8 AS 1148/12
Comment on:
LSG Chemnitz 8th Senate, Judgment of 16.07.2014 – L 8 AS 1148/12 – dejure.org
Author: Prof. Dr. Volker Wahrendorf, Chairman and former Judge of the State Social Court.
Source: juris – tinyurl.com
Request for information from a person liable for maintenance payments
Guiding principles
1. A duty to provide information pursuant to Section 60 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) also requires that the person entitled to maintenance actually receives benefits under the SGB II or has applied for SGB II benefits and that the administrative procedure in this respect has not yet been completed.
2. An expansive interpretation of Section 60 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), parallel to the regulation in Section 33 Paragraph 1 Sentence 2 of the SGB II, resulting in an obligation to provide information even if the person entitled to maintenance is not receiving benefits, is not permissible.
Note:
Similarly: LSG Stuttgart, judgment of 27.09.2011 – L 13 AS 4950/10 and BAY LSG, judgment of 30.04.2015 – L 7 AS 634/13 – The appeal is granted.
11. Commentary by the law firm FLES Bayreuth on the Bavarian State Social Court's judgment of June 11, 2015 – L 10 AL 43/14:
Imposition of a waiting period due to the employee's own resignation because of low working hours is permissible.
Failure to appear at work and registration as unemployed suggests termination of the employment relationship
The employment agency can impose a waiting period if an employee terminates their employment because they are not meeting the agreed working hours. If an employee no longer shows up for work and also registers as a job seeker, this suggests that they have terminated their employment. This was decided by the Bavarian State Social Court.
More information: www.fe-ls.de
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
