1. Decisions of the Federal Social Court of 19 August 2015 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 19.08.2015 – B 14 AS 1/15 R
Basic income support for job seekers – legality of the request to apply for early retirement pension – final regulation of the hardship clause – discretionary decision of the basic income support provider
Guiding principle (Editor)
1. The early retirement of recipients of benefits under SGB II is lawful.
2. The circumstances regulated in the Unfairness Ordinance, according to which the application for and claiming of an early retirement pension after reaching the age of 63 may be unfair, are exhaustive.
3. Recipients of benefits under the German Social Code, Book II (SGB II), are obligated to claim early retirement benefits to avoid becoming dependent on social assistance. If they fail to do so, the job center can require them to apply for early retirement benefits or submit the application themselves if they do not cooperate.
Source: juris.bundessocialgericht.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Hamburg, decision of 15 October 2015 – L 4 AS 403/15 B ER
A Bulgarian national is not entitled to ALG II (unemployment benefit II).
Principle (Juris)
1. The exclusion rule of Section 7 Paragraph 1 Sentence 1 No. 2 SGB II is unobjectionable under European law (Case law of the ECJ, Judgment of 11 November 2014 – C-333/13 “Dano”; Judgment of 15 September 2015 – C-67/14 “Alimanovic”).
2. There are also no constitutional objections to the exclusion rule.
3. Therefore, a merely provisional approval pursuant to Section 40 Paragraph 2 No. 1 SGB II in conjunction with Section 328 Paragraph 1 Sentence 1 No. 2 SGB III is also not an option.
Legal tip: the outcome is likely the same: Bay LSG, decision of 01.10.2015 – L 7 AS 627/15 B ER
2.2 – Berlin-Brandenburg State Social Court, decision of 31.07.2015 – L 25 AS 1911/14 B PKH – legally binding
Granting of legal aid – offsetting of a loan for electricity debts in the amount of 10 percent pursuant to Section 42a Paragraph 2 of the German Social Code, Book II (SGB II) – prospects of success affirmed
Constitutionality of offsetting repayment claims from electricity loans against basic income support benefits
Note (Court)
1. Significant constitutional concerns have been raised against Section 42a Paragraph 2 of the German Social Code, Book II (SGB II). These concerns are based, in particular, on the argument that the ongoing reduction of benefits to cover standard needs due to loan expenses negates the possibility, required by the Federal Constitutional Court (BVerfG), of saving up for standard needs allowances (see, for example, Berlin Social Court, decision of September 30, 2011 – S 37 AS 24431/11 ER; Berlin-Brandenburg Higher Social Court, decision of November 18, 2013 – L 10 AS 1793/13 B PKH). The Federal Constitutional Court has only expressly not found a temporary monthly reduction of standard benefits to be constitutionally objectionable (see North Rhine-Westphalia Higher Social Court, judgment of April 23, 2015 – L 7 AS 1451/14). Although the 20th Senate of the LSG Berlin-Brandenburg did not share these concerns in its judgment of March 12, 2015 (L 20 AS 261/13), it allowed the appeal on points of law due to its fundamental importance with regard to the legal question discussed here, which is pending before the Federal Social Court under file number B 4 AS 14/15 R.
2. In view of the outlined disputed legal question, the sufficient prospects of success of the action must be affirmed, which applies all the more here as a multi-year set-off was at issue based on the loan amount of approximately 1,650 euros.
Source: socialcourtsability.de
2.3 – LSG BB, Judgment of 25.08.2015 – L 37 SF 29/14 EK AS
Social court proceedings: Compensation for excessive length of social court proceedings – a complaint regarding the delay was unnecessary here
Due to the excessive length of the proceedings (29 months), the applicant is granted compensation in the amount of 2900 euros.
Principle (Juris)
1. On the question of who is a party to the proceedings in the original proceedings within the meaning of Section 198 Paragraph 1 Sentence 1, Section 198 Paragraph 6 No. 2 of the Courts Constitution Act (GVG).
2. Deviation from the preparation and consideration period of 12 months, which is regularly considered appropriate (BSG, judgments of 03.0.2014 – B 10 ÜG 12/13 R – B 10 ÜG 2/14 R).
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision of 15 September 2015 – L 34 AS 1868/15 B ER – legally binding
Guiding principle (Editor)
: Union citizens who reside in Germany without a substantive right of residence are not entitled to benefits under the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 17 September 2015 – L 31 AS 1571/15
Basic income support for job seekers – consideration and calculation of income – receipt of child benefit back payment for several months in one month – multiple deduction of the flat-rate allowance of 30.00 euros – left open whether the back payment of child benefit is to be classified as a one-off or ongoing income within the meaning of the ALG II-V.
Principle (Editor):
If child benefit is paid in a single month as a back payment for several months, the insurance allowance of €30 must be deducted for each monthly amount. (Based on BSG, 17.07.2014 – B 14 AS 25/13 R).
Source: socialcourtsability.de
2.6 – North Rhine-Westphalia State Social Court, decision of 14 October 2015 – L 19 AS 1627/15 B ER – legally binding
Complete termination of unemployment benefit II (ALG II) pursuant to Section 31a Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) (repeated breach of duty) – review of the legality of a contested integration administrative act – balancing of the interests in suspension and enforcement – important reason – lack of proof of personal efforts – admissibility of the regulations contained in the administrative act – cost coverage arrangement – constitutionality of sanctions
The concerns expressed by the Gotha Social Court in its decision of May 26, 2015 (S 15 AS 5157/14) regarding the fundamental constitutionality of the sanction regulations of the German Social Code, Book II (SGB II), are not shared by the adjudicating Senate
Principle (Editor):
1. The provision in the administrative act requiring the applicant to make two job applications per month is not objectionable, as a sufficient provision has been made regarding the reimbursement of application costs. The administrative act expressly states that the costs for written applications will be covered in accordance with Section 16 Paragraph 1 of the German Social Code, Book I (SGB I) in conjunction with Section 44 of the German Social Code, Book III (SGB III), and that travel expenses can also be claimed in accordance with the statutory provisions. Further specification of the cost reimbursement provision is neither necessary nor possible, as the reimbursement of reasonable costs must be assessed on a case-by-case basis according to the statutory provisions, and further specification of the cost reimbursement provision would potentially and impermissibly infringe upon the affected party's right to have the specific costs claimed considered.
2. The Senate has no compelling evidence to suggest that the sanction provisions of the German Social Code, Book II (SGB II) are unconstitutional (see Senate decision of March 28, 2013 – L 19 AS 458/13 B; Bavarian State Social Court, decision of July 8, 2015 – L 16 AS 381/15 B ER with further references; Gotha Social Court, decision of May 26, 2015 – S 15 AS 5157/14).
Source: socialcourtsability.de
Legal tip 1:
Three cases concerning the standard of review and the depth of review for sanctioning a violation of an application obligation imposed by an integration agreement are pending before the Federal Social Court (BSG): B 14 AS 26/15 R, B 14 AS 29/15 R and B 14 AS 30/15 R
Legal tip 2:
a. A. SG Dresden, judgment of 10.08.2015 – S 20 AS 1507/14 – The concerns expressed by the Social Court of Gotha in its decision of 26.05.2015 (S 15 AS 5157/14) regarding the fundamental constitutionality of the sanction regulations of the SGB II are shared by the adjudicating chamber.
2.7 – Hessian State Social Court, decision of 18.09.2015 – L 7 AS 431/15 B ER
Principle (Juris):
The exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) for job seekers also applies to persons without a substantive right of residence who are nationals of another European member state. An exclusion provision is open to broader interpretation under certain conditions present here. Regarding the requirements for employee status under Section 2 Paragraph 2 Number 1 of the Freedom of Movement Act/EU.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Heilbronn, Decision of 23.10.2015 – S 11 AS 2976/15 ER
Hartz IV benefits granted in expedited proceedings to a heavily pregnant Bulgarian woman and her Iraqi fiancé.
Guiding principle (Editor):
It is unreasonable to expect a heavily pregnant Bulgarian woman and her fiancé to wait for the outcome of the main proceedings in a Hartz IV case, even if their residency status is still unclear.
Note:
See also: Press release from October 23, 2015: www.sg-heilbronn.de
3.2 – Social Court Karlsruhe, Judgment of 25 August 2015 – S 15 AS 997/15
Unemployment benefit II, consideration of income, inheritance, inflow, usability, available funds
Debt obligations cannot usually be deducted from income.
Principle (Juris):
The purely contractual agreement with the co-heirs to use the received amount in a specific way (here, the purchase of a gravestone) even after the division of the inheritance does not eliminate the qualification as readily available funds, at least not if the gravestone had neither been commissioned nor invoiced at the time of receipt.
Source: socialcourtsability.de
Note:
See also Bavarian State Social Court (Bay LSG), judgment of July 22, 2015 – L 16 AS 502/14 – When calculating income from an inheritance, inheritance costs (funeral expenses) can only be considered under the German Social Code, Book II (SGB II) in the month of receipt; Lower Saxony State Social Court (LSG NSB), decision of February 9, 2015, L 11 AS 1352/14 B ER – When calculating income from an inheritance received during the course of receiving benefits under the German Social Code, Book II (SGB II), the necessary expenses associated with generating the income must be deducted. This includes funeral expenses borne by the benefit recipient (Section 11b Paragraph 1 Sentence 1 No. 5 SGB II in conjunction with Section 1968 of the German Civil Code (BGB)).
3.3 – SG Dortmund, judgment of October 7, 2015 – S 33 AS 1731/13
The Hartz IV agency has to pay the telephone registration fees
Guiding principle (Editor):
1. Re-registration costs for the telephone connection are to be granted as necessary moving expenses if the move was initiated by the job center or was necessary for other reasons.
2. While the costs for telephone use are generally included in the standard allowance, this only covers the monthly costs incurred by providing the connection. The costs claimed here, however, are in addition to these.
Source: www.elo-forum.org
Legal tip:
Change of address and switching of postal and telecommunications connections, as well as the necessary notification of third parties, can be covered as moving expenses (controversial, affirmed by the Social Court of Dresden on 6 June 2006 – S 23 AS 838/06 ER and on 11 January 2010 Social Court of Speyer S 6 AS 239/08 (also mail forwarding application), Social Court of Berlin on 14 December 2010 – S 197 AS 26002/09; Social Court of Mannheim on 12 December 2011 – S 10 AS 4474/10: mail forwarding application).
3.4 – Social Court Neuruppin, judgment of 12 October 2015 – S 26 AS 259/11 and of 16 October 2015 – S 26 AS 1976/13
OTC medications – basic income support under the German Social Code, Book II (SGB II) – unavoidable ongoing needs – increased expenses for medications
Costs for non-prescription medications as well as for non-prescription drugs cannot trigger an entitlement to additional needs within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
Guiding principle (Editor)
1. In basic income support according to the German Social Code, Book II (SGB II), the costs of medical treatment are covered by the system of the German Social Code, Book V (SGB V) or (supplementarily) by the standard benefit.
2. Due to the need for a supply of non-prescription medicines, there are generally no unavoidable ongoing needs.
Note: See decision of 29 January 2014 – L 7 AS 711/13 B – granting of legal aid, because in the present case there are conflicting decisions on the legal question of whether and under what conditions over-the-counter (OTC) medications are to be covered by the health insurance fund or as an additional need under Section 21 of the German Social Code, Book II (SGB II), by the job center.
Legal tip:
LSG NRW, decision of 04.06.2014 – L 7 AS 357/13 B – legally binding – Costs for non-prescription medications as well as for non-prescribable medications can trigger an entitlement to additional needs within the meaning of § 21 para. 6 SGB II.
3.5 – SG Nordhausen, Judgment of 09.07.2014 – S 22 AS 4109/12
Principle (Juris)
1. The "appropriate learning support supplementing school offerings" to be considered as a need for education and participation pursuant to Section 28 Paragraph 1, 5 of the German Social Code, Book II (SGB II), is not limited to tutoring in the narrow sense and for a short period of time. If – as in the case of the specific learning disability dyslexia – the nature of the disorder requires a special form of learning support, this is also covered, even if it necessarily takes a longer period of time.
2. The essential learning objectives stipulated by school regulations are not limited to promotion to the next grade level. Rather, in order to promote the legally intended equal opportunities for children from low-income families, a case-by-case decision must be made, based on the individual competencies of the student in question.
3. Regarding the distinction from claims against the school authority, pursuant to Section 35a Paragraph 1 of the German Social Code, Book VIII (SGB VIII) and Section 53 Paragraph 1 of the German Social Code, Book XII (SGB XII).
Legal tip:
Training for dyslexic individuals also constitutes learning support within the meaning of Section 28 Paragraph 5 of the German Social Code, Book II (SGB II). This is widely recognized by case law (see Higher Social Court of Saxony-Anhalt, decision of January 12, 2015 – L 2 AS 622/14 B ER; Higher Social Court of Schleswig-Holstein, decision of March 26, 2014 – L 6 AS 31/14 BE; Higher Social Court of Lower Saxony-Bremen, decision of February 28, 2012 – L 7 AS 43/12 B ER; Higher Social Court of Saxony-Anhalt, decision of May 13, 2011 – L 5 AS 498/10 B ER).
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Bavarian State Social Court, Judgment of 22.09.2015 – L 8 SO 149/12
Social assistance – basic income support for the elderly and those with reduced earning capacity – additional needs allowance due to costly diet – separate application
No additional nutritional needs according to § 30 para. 5 SGB XII for a mixed diet ("full diet")
Guideline (Editor)
1. In the case of arterial hypertension, lipid metabolism disorders and dialysis-dependent renal insufficiency of the applicant, no additional allowance for nutrition is to be granted.
2. Since the generally recommended full diet is sufficient for the plaintiff and Section 30 Paragraph 5 of the German Social Code, Book XII (SGB XII) does not constitute a catch-all provision for the general criticism that a balanced diet cannot be financed from the standard allowance (regarding the identical provision of Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), see Federal Social Court (BSG), judgment of May 10, 2011, B 4 AS 100/10 R), further investigations into food prices are not necessary.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – SG Landshut, final judgment of 14 October 2015 – S 11 SO 36/15
Disputes under the German Social Code Book XII (Social Assistance)
Principle (Juris):
When examining the elements of Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII), the social court is bound by a prior civil court decision insofar as the civil court, with res judicata effect, ruled between parties to the social court proceedings on the existence of pecuniary claims and denied such claims. The decision must be considered even if it should prove to be incorrect.
Source: socialcourtsability.de
6. Language courses/introductory courses according to § 421 SGB III: Information from the Federal Employment Agency
From November 1st, according to the newly introduced Section 421 of the German Social Code, Book III (SGB III), which will then be in effect, individuals with a temporary residence permit or a certificate of registration as an asylum seeker (BüMA) and "for whom a lawful and permanent stay is to be expected" can participate in language courses, so-called entry-level courses, the costs of which will be covered by the employment agencies. This also applies to people in the asylum process with a temporary residence permit or BüMA who have not yet been in Germany for three months. The recruitment of participants is handled by the language course providers.
The term "asylum seekers who are expected to be granted lawful and permanent residence" refers only to persons from Syria, Iran, Iraq, and Eritrea.
The Federal Employment Agency has published current information on this topic on its website; see here.
7. BA Press Release No. 50: Child Benefit: Multilingual Information for Refugees
The Federal Employment Agency's Family Benefits Office (Familienkasse) is now providing information on child benefits for refugees and asylum seekers on its website, www.familienkasse.de. A multilingual information leaflet (including Arabic) explains the conditions under which child benefits can be received. Another leaflet contains important information on receiving child benefits for unaccompanied minor refugees. In addition, those seeking advice will find an overview of other important benefits for families in Germany. The BA's Family Benefits Office views this service as a contribution to an institutional culture of welcome.
All information leaflets are also available at local family benefits offices and other contact points for families.
For questions and personal concerns regarding child benefit, the free service hotline of the Family Benefits Office is available at Tel.: 0800 4 5555 30 (charges apply from abroad: +49 911 12031010) during service hours from Monday to Friday between 8 a.m. and 6 p.m.
Further information on child benefit can be found online at www.arbeitsagentur.de -> Citizens -> Family and Children -> Child benefit, child supplement.
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
