1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Lower Saxony-Bremen State Social Court, Judgment of 23 September 2015 – L 13 AS 170/13 – The appeal is granted
Section 66 Paragraph 3 SGB 1 - Refusal of ALG II - Inheritance - Cooperation
Guiding principles (Juris)
1. In the legal consequences notice pursuant to Section 66 Paragraph 3 of the German Social Code, Book I (SGB I), it is not necessary to specify the concrete intended decision in its entirety.
2. If the authority were obliged to specify its discretion in the warning notice pursuant to Section 66 Paragraph 3 of the German Social Code, Book I (SGB I), with regard to a very specific legal consequence, it would inevitably have to forfeit the possibility of responding appropriately to subsequent considerations when exercising its discretion.
3. Ultimately, the decisive factor for the necessary content of the instruction on consequences pursuant to Section 66 Paragraph 3 of the German Social Code, Book I (SGB I), is the warning function pursued by it.
Source: www.rechtsprachung.niedersachsen.de
1.2 – North Rhine-Westphalia State Social Court, decision of 23 October 2015 – L 19 AS 1365/15 B ER – legally binding
A self-employed person who has established a business is to be regarded as an employed person within the meaning of Section 2 Paragraph 2 No. 2 of the Act on the General Freedom of Movement of Union Citizens – Freedom of Movement Act/EU (FreizügG/EU) – newly opened business establishment
No exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II – Self-employed Romanian within the meaning of Section 2 Paragraph 2 No. 2 FreizügG/EU.
Guiding principle (Editor)
1. Self-employed Union citizens are entitled to freedom of movement if they are entitled to pursue self-employed work (established self-employed persons), i.e., if they are persons exercising their freedom of establishment under Article 49 TFEU.
2. He cannot be denied the will to pursue economic activity as a self-employed person indefinitely (cf. LSG Hessen, judgment of 27.11.2013 – L 6 AS 378/12).
3. Whether the activity generates a certain profit, in particular whether it is sufficient to cover living expenses, is irrelevant for the opening of the scope of protection of the freedom of establishment, especially at the beginning of self-employment (cf. Bavarian Administrative Court, decision of 29 June 2015 – 10 ZB 15.930). In this respect, the applicant's turnover of EUR 380.00 to EUR 400.00 per month in the first nine months does not preclude the assumption that he is engaged in self-employment within the meaning of Section 2 Paragraph 2 No. 2 of the Freedom of Establishment Act/EU.
4. If, in accordance with the case law of the ECJ on the concept of an employee (Judgment of 04.02.2010 – C-14/09 Case Genc), a settlement is denied if the activity is of a completely subordinate and insignificant scope (LSG NRW, Decision of 04.05.2015 – L 7 AS 139/15 B ER), this does not, in the present case, decisively preclude the assumption of a right of residence within the meaning of Section 2 Paragraph 2 No. 2 of the Freedom of Movement Act/EU).
5. The presence of very few orders can, within the context of an overall assessment, be an indication of only a subordinate and insignificant self-employed activity. However, when considering the question of insignificance, it must be taken into account that if a business – as in the present case – is not taken over but newly established, a longer start-up and development phase is often necessary before the business becomes profitable (Higher Administrative Court of Bremen, decision of June 21, 2010 – 1 B 137/10). The question of when an activity is considered completely subordinate and insignificant has not yet been clarified in case law, either with regard to employee status or self-employment status.
Source: socialcourtsability.de
Note:
See LSG Hamburg, decision of 01.12.2014 – L 4 AS 444/14 BER – according to which a British citizen is not to be regarded as a self-employed person established within the meaning of Section 2 Paragraph 2 No. 2 of the Act on the general freedom of movement of Union citizens – Freedom of Movement Act/EU (FreizügG/EU), because only a subordinate or insignificant economic activity is not sufficient, although it should not be required that the income be so high that it is sufficient for the livelihood alone (200 euros per month).
1.3 – North Rhine-Westphalia State Social Court, decision of 26 October 2015 – L 19 AS 1452/15 B ER – legally binding
Termination of a reasonable measure – Section 31 Paragraph 1 Sentence 1 Number 3 SGB II – three-week – unexcused absence from the measure at the adult education center – integration agreement – legal consequences notice given in case of illness – reduction of the reduction period (Section 31b Paragraph 1 Sentence 4 SGB II)
Unexcused absence from the program will result in a sanction for benefit recipients who have not yet reached the age of 25 (their unemployment benefit II will be limited to the needs according to § 22 SGB II (costs for accommodation and heating)).
Principle (Editor)
1. By being absent from the course at the adult education center for three weeks without excuse, the single mother, who has not yet reached the age of 25, has expressed her lack of willingness to fulfill the obligations to deregister in case of illness or impediment as stipulated in the integration agreement.
2. The legal consequences information provided regarding the reporting obligations in case of illness meets the requirements for proper notification of legal consequences, because the applicant was specifically and correctly informed in the integration agreement under point 4, sub-point "Notification of Sickness" that in the event of a violation of her obligation to deregister in case of incapacity or illness, her ALG II (unemployment benefit II) would be limited to the needs according to § 22 SGB II (costs for accommodation and heating), so that the applicant was specifically and understandably informed of the sanction resulting from § 31a para. 2 sentence 1 SGB II in the event of a breach of duty according to § 31 SGB II.
3. The discretionary decision, which the Jobcenter (JC) lawfully made (only) in the appeal decision, does not reveal any errors of discretion. In particular, the JC correctly pointed out that the applicant herself was absent without excuse for several days even after the warning from the training provider and the letter of notification, thus continuing her breach of duty.
Source: socialcourtsability.de
1.4 – North Rhine-Westphalia State Social Court, decision of 26 October 2015 – L 19 AS 1623/15 B ER, L 19 AS 1624/15 B – legally
binding. Issuance of a regulatory order pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG) rejected – no substantiation of grounds for an order – no consideration of the allowances pursuant to Section 11b of the German Social Code, Book II (SGB II) in preliminary legal protection – eviction action – costs of accommodation (denied).
Guiding Principle (Editor):
1. Allowances protected in the main proceedings pursuant to Section 11b of the German Social Code, Book II (SGB II), are generally not taken into account in preliminary injunction proceedings; rather, they must regularly be fully utilized to cover current needs. The allowances pursuant to Section 11b, paragraphs 1, nos. 1–6, and 2 and 3 of the SGB II are readily available funds that are actually available to cover living expenses and that exceed the subsistence level, which is the purpose of preliminary injunction proceedings. Such income allowances must regularly be used to ensure the subsistence level. This use takes precedence over seeking preliminary injunction proceedings.
2. Likewise, the applicants have not credibly demonstrated grounds for an order concerning the costs of accommodation and heating.
3. According to established case law of the Senate (see, in this regard, the Senate's decisions of June 24, 2015 – L 19 AS 360/15 B ER and of July 6, 2015 – L 19 AS 931/15 B ER – which summarize the prevailing legal opinion), filing an eviction lawsuit is generally necessary. Even if rent arrears, a notice of termination, or a threat of termination by the landlord were considered sufficient grounds for an injunction, the applicants' submissions do not demonstrate an immediate threat to the apartment. According to their own statements, they have no outstanding rent.
Source: socialcourtsability.de
1.5 – Bavarian State Social Court, decision of 14 October 2015 – L 7 AS 663/15 B ER
No interim legal protection was granted to the applicant, who requests that the job center refrain from filing disclosure claims with the family court, imposing a coercive fine, and initiating penalty proceedings against the applicant.
The information notice pursuant to Section 60 Paragraph 2 of the German Social Code, Book II (SGB II) is not yet legally binding; therefore, objections and legal action have suspensive effect pursuant to Section 86a Paragraph 1 Sentence 1 of the German Social Court Act (SGG) – lack of a legitimate interest in legal protection
Principle (Editor):
1. The need for legal protection is already lacking because the public-law right to information under Section 60 Paragraph 2 of the German Social Code, Book II (SGB II) is suspended in its enforceability by objection and action – now also by appeal (regarding the administrative act nature of the request for information under Section 60 SGB II, see Federal Social Court (BSG), judgment of February 24, 2011, B 14 AS 87/09 R). This request for information is not subject to immediate enforceability under Section 39 SGB II. It has suspensive effect pursuant to Section 86a Paragraph 1 Sentence 1 of the German Social Courts Act (SGG).
2. Insofar as the applicant demands the cessation of future measures, he is seeking preventive legal protection. Even in preliminary legal protection proceedings, a qualified legal interest is necessary for preventive injunctions, which is not present if the affected party can be referred to subsequent legal remedies. Such a qualified legal interest is not apparent for the coercive fine and administrative fine proceedings based on the right to information under Section 60 Paragraph 2 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
1.6 – Hamburg State Social Court, Judgment of 10 September 2015 – L 4 AS 109/14
Basic income support under the German Social Code, Book II (SGB II) – self-employed – business income – purchase of a digital SLR camera – business expenses
Self-employed individuals receiving supplementary benefits can deduct business expenses from their income, provided they are not obviously unreasonable. The standard is to prevent abuse. The decisive factor is whether the expense is justifiable from the perspective of a prudent, economically minded self-employed person (in this case, it is not).
Principle (Editor)
1. A self-employed person supplementing their income cannot claim the costs of acquiring a digital SLR camera as a business expense.
2. Although these expenses were business-related, they were not necessary, as the purchase of the camera was disproportionate to the income. 3. The standard for determining business necessity is not what is customary in the industry. Rather, Section 3 Paragraph 3 of the ALG II Ordinance specifies the criterion of necessity, according to which actual expenses are not deductible if they are wholly or partially avoidable or clearly do not correspond to the circumstances of life while receiving basic income support. Expenses cannot be deducted in the calculation if the ratio of expenses to the respective income is disproportionate.
4. In the case of the camera purchase, the duty to avoid costs outweighs the entrepreneurial freedom of the self-employed individual. The applicant must be granted a certain degree of discretion in predicting whether an expenditure will promote the business. However, no revenue was generated from the contract obtained through the camera purchase, and it is also unclear whether the self-employed individual will be compensated for it.
Source: socialcourtsability.de
LSG Schleswig-Holstein, judgment from November 14, 2014 – L 3 AS 134/12
Basic income support under the German Social Code, Book II (SGB II) - Housing costs - Cable television
Note from attorney Helge Hildebrandt, Kiel:
Even if television can only be received via a cable connection, a Hartz IV recipient is not entitled to reimbursement of the cable connection fees as part of their accommodation costs if these costs are not contractually owed under the rental agreement.
See also: Job center does not have to cover cable fees: sozialberatung-kiel.de
Note:
Similarly, LSG NRW, decision of 07.04.2011, – L 7 AS 267/11 NZB – costs for cable television and connection usage fees are only to be covered if they are contractually owed under the tenancy agreement (cf. BSG, judgment of 19.02.2009 – B 4 AS 48/08 R).
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Halle (Saale), Judgment of 13 October 2015 – S 7 AS 4841/12 – Appeal allowed
Regarding the interpretation of Section 1 Paragraph 7 Sentence 4 of the German Social Code, Book II (SGB II) – concerning the deduction of motor vehicle liability insurance if the father has given her the car (affirmative)
Regarding the reduction of the so-called pocket money from the Federal Volunteer Service in full, if earned income or income from a partially tax-exempt expense allowance is received at the same time.
Guiding principle (Editor)
1. The higher allowance pursuant to Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) is to be understood as an upper limit for the allowance, because according to the wording, the amount of 175 euros "replaces" the amount of 100 euros (cf. Federal Social Court [BSG] judgment of October 28, 2014 – B 14 AS 61/13 R).
2. The same must apply, as a result, to the interpretation of Section 1 Paragraph 7 Sentence 4 of the German Social Code, Book II (SGB II), and thus to the clarification of the relationship between the allowance(s) for pocket money and the remaining basic allowances.
3. Section 1, paragraph 7, sentence 4 of the Regulation on Unemployment Benefit II (Alg II-V) is not to be applied in such a way that the preferential treatment with a higher basic allowance is completely eliminated if other income is simultaneously earned for which basic allowances are also regulated. This understanding of the regulation, i.e., a norm subordinate to the law, follows from the superior legal relationship between the basic allowances for earned income and tax-privileged (voluntary) activity, and from the obligation to interpret and apply applicable law in a manner consistent with the constitution.
Note:
See also regarding the adjustment of income when pocket money from the Federal Volunteer Service coincides with (other) earned income – Thuringian State Social Court, judgment of 23 September 2015 – L 4 AS 17/15 – legally binding – appeal is permitted.
2.2 – Social Court Halle (Saale), decision of 13 October 2015 – S 32 AS 3462/15 ER
Granting of legal aid – not insignificant prospect of success – cohabitation – joint shopping – multiple overnight stays of the “boyfriend” per week in the applicant's apartment
Guiding principle (Editor)
1. The fact that laundry is washed together, that they see each other daily, sometimes shop together, and that the boyfriend stays overnight in the applicant's apartment several times a week should be sufficient to assume that there is already a cohabiting partnership and thus a community of need within the meaning of Section 7 Paragraph 3 No. 3c SGB II.
2. However, this very consequence is more than questionable.
3. The rule of evidence in Section 7 Paragraph 3a No. 1, according to which, in the case of cohabitation for a period of more than one year, the will to support one another is presumed, refers to two essential criteria of a cohabiting relationship:
4. Living together and duration of the relationship.
5. Cohabitation is only dispensable in atypical cases (e.g., commuters), which is why the assumption of a community of need is hardly justifiable here.
6. The duration of the relationship is therefore important because a distinction must be made between a relationship in the stage of "consolidation" and an already consolidated relationship, particularly with regard to the willingness to commit, since this willingness is precisely what characterizes a consolidated relationship.
7. Therefore, at present, a cohabiting partnership cannot be assumed between the applicant and her boyfriend. Whether this will be the case in the future remains to be seen.
Note:
Stuttgart Social Court, S 18 AS 4309/14 ER, decision of August 29, 2014 – The assumption of a community of need for unmarried partners necessarily requires the existence of a shared household. Merely maintaining a romantic relationship while keeping separate households is not sufficient to establish a community of need, even if the partners alternately stay overnight in each other's homes; Ulm Social Court, judgment of March 5, 2014 – S 4 AS 1764/13 – A prerequisite for the existence of a community of responsibility and support pursuant to Section 7 Paragraph 3 of the German Social Code, Book II (SGB II), is that partners live together in a shared residence (for further details, see Federal Social Court, judgment of August 23, 2012 – B 4 AS 34/12).
2.3 – Augsburg Social Court, Judgment of 12 August 2015 – S 14 AS 992/14
The job center has a claim against the benefit recipient for reimbursement of benefits paid due to socially unacceptable behavior – Section 34 Paragraph 1 SGB II
Guiding principle (Editor)
1. The requirements of Section 34 Paragraph 1 of the German Social Code, Book II (SGB II) are met, because she did not go to work solely for the welfare of her son.
2. The wording of Section 34 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) does not preclude the fulfillment of the prerequisites for future benefits even during the current benefit period (i.e., for the following benefit period) (contra: Saxon State Social Court, decision of March 3, 2008 (Case No.: L 3 B 187/07 AS-ER), which did not expressly address this issue – Federal Social Court, judgment of November 2, 2012 (Case No.: B 4 AS 39/12 R).
3. If an employment relationship is terminated with knowledge of the resulting need for assistance, this behavior is to be considered socially unacceptable from the perspective of basic income support law. The present case of not resuming a dormant employment relationship is to be assessed no differently.
2.4 – SG Berlin, decision of 21.10.2015 – S 203 AS 19872/15
Note (Court)
1. Until a consensual decision is reached by the relevant benefit providers, employability is to be assumed and benefits under the German Social Code, Book II (SGB II) are to be granted.
2. Section 44a of the German Social Code, Book II (SGB II) contains a seamless transition provision, which entails a payment obligation on the part of the benefit provider.
Note:
See also the article by attorney Kay Füßlein, Berlin: "Employable – until the responsible agency determines otherwise": www.ra-fuesslein.de
2.5 – Gießen Social Court, decision of 21 May 2015 – S 27 AS 375/15 ER
Unreasonable heating costs for homeowners – entitlement to further benefits for heating costs because cost reduction measures are unreasonable – Section 22 Paragraph 1 Sentence 3 SGB II – grounds for order – It is also unclear whether the JC's coherent concept even meets the requirements of the BSG.
The move would not be economically sensible. A benefit recipient can also claim benefits for unreasonable heating costs if a change of residence leads to lower heating costs but not to lower overall costs.
Guiding Principles (Editor)
1. The actual expenses must continue to be covered because cost-cutting measures are unreasonable for the applicant. In this case, the only possible cost-cutting measure is a change of residence, as saving heating oil does not appear feasible given the building's energy efficiency standard, and the applicant lacks the financial resources for renovating or converting the building for the purpose of partial rental.
2. Finally, a change of residence as a cost-saving measure due to excessive heating costs is only reasonable if the alternative residence actually incurs lower overall gross heating costs (Federal Social Court, judgment of June 12, 2013, B 14 AS 60/12 R). These standards also apply in principle to homeowners and apartment owners.
Source: socialcourtsability.de
Note:
The same applies to rented apartments: Bavarian State Social Court, decision of 29 January 2014 – L 7 AS 25/14 B ER; Social Court Dresden, decision of 1 October 2014 (file no.: S 43 AS 5294/14.ER), confirmed by the State Social Court Saxony, decision of 3 February 2015 (file no.: L 2 AS 1326/14 B ER).
2.6 – Social Court Reutlingen, Judgment of 31.08.2015 – S 7 AS 758/14 – legally binding
Decree decision; lack of decision-making authority of the Federal Employment Agency; collection of claims by the Job Center; transfer of tasks only permissible by means of a resolution of the governing body
Guiding principles (Juris)
1. An effective transfer of tasks from the joint institution (job center) to the Federal Employment Agency (here: debt collection) requires a resolution of the governing body.
2. Decisions by the managing director of the joint institution to "purchase" services are not sufficient for a transfer of tasks if – as in the case of debt collection – these are core tasks assigned by law.
3. In the absence of a resolution from the governing body, the Federal Employment Agency is neither authorized to collect outstanding debts nor to decide on applications for debt forgiveness. Decisions based on an invalid transfer of authority are unlawful.
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Hamburg State Social Court, Judgment of 24 September 2015 – L 4 SO 2/15
The applicant is not entitled to an additional allowance due to a more expensive diet (psoriasis, allergies, abdominal complaints and dysphagia, cow's milk allergy, lactose intolerance), because he refused further examinations or a consultation with a dermatologist.
Principle (Editor)
1. Even though the Federal Social Court, for example, emphasizes in its decisions of November 22, 2011 (B 4 AS 138/10 R) and February 14, 2013 (B 14 AS 48/12 R) that the recommendations are not a so-called anticipated expert opinion, there is no doubt that the recommendations at least provide important guidance (as already stated by the Federal Constitutional Court, decision of June 20, 2006 – 1 BvR 2673/05; Federal Social Court, judgment of November 22, 2011 – B 4 AS 138/10 R; Federal Social Court, judgment of February 14, 2013 – B 14 AS 48/12 R).
2. In December 2014, the German Association revised its recommendations on dietary allowances for sick people and for the first time also made statements on additional needs in the case of lactose and fructose intolerances, concluding that, as a rule, the diet is not more costly when these intolerances exist (Recommendations, p. 8).
3. Here, there is only mention of a suspected food intolerance to corn, beef, fish, avocado, banana, bell pepper, celery, spinach, tomato, soybean and almond, and the plaintiff is said to have refused to see a dermatologist for special allergy food tests.
4. The plaintiff also stated during the oral proceedings that he did not wish to undergo any further examinations in this matter. Under these circumstances, the Senate sees no reason to conduct any further investigations itself (cf. Federal Social Court, Judgment of June 9, 2011, B 8 SO 11/10 R).
Source: socialcourtsability.de
3.2 – Hamburg State Social Court, Judgment of 24 September 2015 – L 4 SO 40/14
The social welfare provider does not have to cover the costs of sign language interpreters, because the granting of integration assistance by the social welfare provider is subject to need.
Principle (Editor)
1. A claim for reimbursement of interpreter costs does not arise from the Federal Disability Equality Act (BGG).
2. No claim arises from the General Equal Treatment Act (AGG) either.
3. The UN Convention on the Rights of Persons with Disabilities (UN CRPD) also does not provide for a direct individual right to reimbursement of the costs of using a sign language interpreter for a specific occasion. Article 26 of the UN CRPD, which requires measures to "enable persons with disabilities to achieve and maintain the highest possible level of independence, full physical, mental, social and vocational abilities, and full inclusion and participation in all aspects of life," is not sufficiently specific to derive a concrete right from it (Judgment of the Senate of 20 November 2014, L 4 SO 15/13).
4. A restriction on the asset assessment is not required under Section 92 Paragraph 2 of the German Social Code, Book XII (SGB XII), according to which disabled persons are only required to raise their own funds to cover the costs of living in certain cases. Although the applicant belongs to the group of persons mentioned in Section 19 Paragraph 3 of the SGB XII, the circumstances covered by Section 92 Paragraph 2 Sentence 1 of the SGB XII do not apply in his case.
5. Section 90, paragraph 3, sentence 1 of the German Social Code, Book XII (SGB XII) also does not preclude the use of assets, even though this would constitute a hardship for the applicant. The application of a hardship clause is only considered in atypical cases where it can be assumed that the legislator, had they been aware of such a situation, would have enacted a corresponding regulation. This is not the case here, neither with regard to the amount of the costs nor with regard to the plaintiff's disability.
Source: socialcourtsability.de
3.3 – Hamburg State Social Court, Judgment of 24 September 2015 – L 4 SO 82/14
Rejection of legal aid – No entitlement to social assistance due to assets – private pension insurance – the entitlement to benefits is precluded by the reservation of lack of assets and income (cf. Section 2 SGB XII)
Guiding principles (Editor)
1. The termination of private pension insurance and the use of the proceeds is not excluded under Section 90 Paragraph 2 No. 2 SGB XII.
2. The realization of the assets is also reasonable for him. It does not constitute undue hardship within the meaning of Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII). The alleged purpose of the old-age security alone is insufficient to establish a general hardship within the meaning of the provision. This also does not follow from the fact that the applicant may not be able to make any further provisions for old age until reaching retirement age due to his reduced earning capacity, as he only receives a reduced earning capacity pension limited to 2016.
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – SG Aurich, Judgment of 15.06.2011 – S 13 SO 14/07
Social assistance – Integration assistance – Use of assets – Realizability of a co-ownership share in a property – Encumbrance with a real right of residence – Burden of proof
Principle (Juris):
If the usability of the service is substantiated, it is the responsibility of the recipient of the service to demonstrate its unusability.
Source: socialcourtsability.de
Note:
The judgment of the Social Court of Aurich was confirmed by the Higher Social Court of Lower Saxony (LSG NSB), judgment of 25.09.2011 – L 8 SO 261/11 – the plaintiff's appeal to the Federal Social Court (BSG) (B 8 SO 97/14 B) was dismissed as inadmissible.
4.2 – Social Court Detmold, Judgment of 13 October 2015 – S 2 SO 208/13
Regarding the crediting of compensation payments due to a traffic accident – monetary annuity according to § 843 BGB
The monthly payments of 100 euros awarded by the Regional Court pursuant to Section 843 of the German Civil Code (BGB) are considered income subject to social security contributions within the meaning of the German Social Code, Book XII (SGB XII).
Guiding principle (Editor):
The monetary annuity under Section 843 of the German Civil Code (BGB) is compensation for damages and not for pain and suffering. Therefore, it does not fall under the exception of Section 82 Paragraph 1 of the German Social Code, Book XII (SGB XII) and must be counted as income.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Employment Promotion (SGB III)
5.1 – North Rhine-Westphalia State Social Court, Judgment of 18 September 2015 – L 9 AL 6/15 – pending before the Federal Social Court under file number B 11 AL 76/15 B
No approval of unemployment benefit I.
Guiding principle (Editor):
Within the framework of compulsory insurance pursuant to Section 26 Paragraph 2a SGB III, consideration of parental leave extended in accordance with Section 15 Paragraph 2 BEEG is not possible.
This does not violate constitutional law.
Source: socialcourtsability.de
5.2 – Hamburg State Social Court, Judgment of 23 September 2015 – L 2 AL 57/13
No start-up grant for self-employed lawyers – discretion reduced to zero
Guiding Principles (Editor):
1. A judgment ordering the job center to pay the start-up grant requested by the applicant is only conceivable if its discretion is reduced to zero and only a decision in favor of the applicant can be considered free from errors of discretion. There is no evidence to support this.
2. Such a reduction of discretion to zero requires, according to general criteria, that the established facts preclude the existence of any circumstances that would permit a different exercise of discretion without legal error. It therefore exists if any other decision would necessarily constitute an abuse of discretion and thus be unlawful (see, for example, Hessian State Social Court, decision of April 5, 2012 – L 7 AS 46/12 B ER). Applied to the claim under Section 57 of the German Social Code, Book III (SGB III aF), this means that a reduction of discretion – apart from the case of self-commitment in individual cases through a corresponding assurance (cf. Saxon State Social Court, judgment of April 10, 2014 – L 3 AL 141/12), for which there is no indication given the content of the integration agreement – can generally only be assumed if the self-employed activity undertaken is the only measure with which permanent professional reintegration could be achieved (State Social Court of Baden-Württemberg, judgment of February 24, 2015 – L 13 AL 1924/14).
3. However, nothing has been presented or shown to support this.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Asylum Law
6.1 – Lower Saxony-Bremen State Social Court, decision of 2 October 2015, L 8 AY 40/15 B ER
On the admissibility of housing a refugee family in a residential container
Guiding principles (Juris)
1. Accommodation in a residential container can temporarily cover the necessary accommodation needs for a five-member refugee family.
2. However, when exercising discretion regarding the type of accommodation provided by granting a benefit, it must be taken into account that the accommodation of a family with school-age children in cramped conditions in a residential container should not be permitted for extended periods, particularly due to the limited privacy and restricted opportunities for retreat (also for schoolwork).
3. In view of the increase in the number of people entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who need to be accommodated, it is obvious that municipalities often do not currently have alternative housing available.
Source: www.rechtsprachung.niedersachsen.de
Note:
See also: Press release of the Higher Social Court of Celle-Bremen No. 14/15 of October 28, 2015: Accommodation of refugees in residential containers is generally acceptable: www.juris.de
7. Decisions of the social courts on asylum law
7.1 – Social Court Landshut, judgment of 21 October 2015 – S 11 AY 41/15
Asylum seeker benefits – basic benefits – no flat-rate additional allowance for single parents – specific, individual needs assessment – constitutionality
No lump-sum additional allowance for single parenthood will be granted in accordance with Section 30 Paragraph 3 of the German Social Code, Book XII (SGB XII).
Guiding principle (Editor)
1. It cannot be assumed that there is an unintended regulatory gap regarding additional needs benefits for single parents in the Asylum Seekers' Benefits Act (AsylbLG).
2. For benefits under Sections 3 et seq. of the Asylum Seekers' Benefits Act (AsylbLG), in particular under Section 6 Paragraph 1 Sentence 1 AsylbLG, no flat-rate additional needs allowances for single parents are provided. In this respect, the specific need, which may be covered by monetary, material, or service benefits, is decisive.
3. The legislator's decision to provide lump-sum cash benefits in the German Social Code, Book II (SGB II) and Book XII (SGB XII), for the needs of single parents, while simultaneously providing for specific individual needs-based support in the Asylum Seekers' Benefits Act (AsylbLG), does not violate the fundamental right to a dignified minimum standard of living under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 GG, nor does it violate the general principle of equality under Article 3 Paragraph 1 GG (based on the decision of the Higher Social Court of Lower Saxony-Bremen of November 27, 2014 (Case No.: L 8 AY 57/14 B ER)).
Source: socialcourtsability.de
Note:
The same result was reached by the Higher Social Court of North Rhine-Westphalia, decision of 18 December 2014 – L 20 AY 76/14 B ER, L 20 AY 77/14 B ER
7.2 – SG Berlin, Decision of 20.10.15 – S 47 AY 342/15 ER
SG Berlin: Reception facility or 846 Euro advance payment for asylum seekers
The Berlin Social Court has provisionally ordered the State Office for Health and Social Affairs to accommodate the applicant, a 26-year-old Afghan, in a reception facility by the end of the year or to transfer an amount of 846 euros as an advance payment for a hostel found by the applicant.
The €846 advance payment covers 47 nights in a six-bed room at €18 per night. The applicant had received a valid voucher for emergency accommodation (a so-called hostel voucher) and €600 in cash for living expenses. However, he credibly demonstrated that he had been turned away from all accommodations. Either they were fully booked, or the operators insisted on advance payment, citing the poor payment practices of the State Office for Health and Social Affairs.
Furthermore, the Asylum Seekers' Benefits Act stipulates accommodation in communal housing as the standard procedure. The State Office for Health and Social Affairs is obligated to provide the applicant with this benefit in kind. It cannot simply shift the responsibility for finding accommodation onto the applicant.
Read more: www.rechtsindex.de
8. Note on: Federal Social Court, 14th Senate, Judgment of October 28, 2014 – B 14 AS 36/13 R (dejure.org/2014,31768)
Author: Christian Olthaus, Senior Government Official
Legal provisions: Section 7 SGB II, Section 11b SGB II, Section 12 SGB II, Section 2 AlgIIV 2008, Section 51 StVollzG, Section 11a SGB II, Section 11 SGB II, Section 37 SGB II
Source: juris
Consideration of bridging allowance as income
Principle:
The application for benefits to secure subsistence under the German Social Code, Book II (SGB II), which is decisive for the distinction between income and assets, also has retroactive effect to the first day of the month of application, even if there is no entitlement to benefits for the period before the application.
9. Federal Court of Justice denies obligation to accept service – No collegiality in service from lawyer to lawyer
Regarding BGH, judgment of October 26, 2015 – AnwSt (R) 4/15 – dejure.org
Is a lawyer allowed to refuse to accept a letter from the opposing party in order to force them to miss the deadline?
He is allowed to do so, the Federal Court of Justice (BGH) has now confirmed. He is obligated to act in the interests of his client, not those of his colleagues.
More information: www.lto.de
10. Current Events: October 28, 2015: Unconstitutional cuts in the Asylum Seekers' Benefits Act – Roland Rosenow, Social Law in Freiburg
October 28, 2015: Unconstitutional cuts in the Asylum Seekers' Benefits Act
In its decision of July 18, 2012 (1 BvL 10/10) concerning the Asylum Seekers' Benefits Act (AsylbLG), the Federal Constitutional Court declared the provisions of the then-applicable AsylbLG manifestly unconstitutional and ordered that those entitled to benefits under the AsylbLG immediately receive significantly higher payments.
The social courts will now be confronted with urgent applications and lawsuits not directed against administrative decisions that violate the law, but rather against a law that violates the Basic Law (Constitution). If they take their obligation to uphold the law seriously, they must refer the matter to the Federal Constitutional Court as soon as possible. When the legislative branch violates the law, the judiciary must enforce the law. It possesses the means to do so.
Source: www.socialrecht-in-freiburg.de
11. Refugee Issues Reach the Social Court – Significant Increase in Case Numbers in October
Press Release from October 26, 2015
In the first three weeks of October 2015, the Berlin Social Court registered over 50 cases under the Asylum Seekers' Benefits Act. For this area of law, which – in relation to the court's total caseload – has been relatively small, this represents an increase of over 100% compared to the previous monthly average. Most cases involve urgent applications from refugees against the State Office for Health and Social Affairs (LAGeSo). However, lawsuits have also been filed by service providers such as doctors and hostels awaiting payment from LAGeSo.
It should be noted that the jurisdiction of the Social Court is limited to disputes concerning benefits under the Asylum Seekers' Benefits Act. The Social Court itself does not distribute any benefits. It can only compel the State Office for Refugee Affairs (LAGeSo) to grant benefits. The implementation of the court's decisions is then the responsibility of the agency.
The following examples illustrate the situation: S 47 AY 342/15 ER (decision of 20.10.15):
Read more: www.berlin.de
12. Forced retirement – Federal Social Court ignores the Basic Law, an article by Herbert Masslau on the Federal Social Court ruling of August 19, 2015 – B 14 AS 1/15 R.
Read more: www.herbertmasslau.de/zwangsverrentung-bsg.html
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
