1. Decisions of the state social courts on basic security for job seekers (SGB II)
1.1 - LSG Baden-Württemberg, judgment of April 15, 2015 - L 3 AS 2118/14 - pending at the BSG under the ref. B 4 AS 45/15 R
Basic security for job seekers according to SGB II - Administrative integration act - Legality of imposed obligations regarding accessibility - Repetition of the legal text of Section 7 Paragraph 4a SGB II - Constitutional interpretation
Guiding principle (editor)
1. The obligations imposed on a benefit recipient in an integration administrative act in accordance with Section 15 Paragraph 1 Sentence 6 SGB II, which merely repeat the legal regulations of Section 7 Paragraph 4a Sentence 1 SGB II regarding presence in the local and timely area, are not subject to any significant legal concerns.
2. The regulation of Section 7 Paragraph 4a SGB II has not been objected to by the Federal Social Court (BSG, judgment of May 16, 2012 - B 4 AS 166/11 R).
3. The Accessibility AO does not violate higher-level law (Bay LSG, decision of March 3, 2009 - L 11 AS 23/09 NZB).
Legal tip:
Schleswig-Holstein State Social Court, judgment of June 20, 2013 - L 6 AS 89/12 - BSG, decision of November 20, 2013 - B 14 AS 393/13 B - The plaintiff's complaint against the non-admission of the appeal in the judgment mentioned is as rejected inadmissibly.
Basic security for job seekers - Administrative act replacing integration agreement - Permissible content and specificity - Regulations on absenteeism
Guiding principle (editor)
As part of an integration agreement/integration administrative act, regulations regarding the absence/availability of the person in need of help are in principle possible, despite the reference to the applicability of the accessibility order included in Section 7 Paragraph 4a SGB II since August 1, 2006.
1.2 – Baden-Württemberg State Social Court, judgment of October 20, 2015 – L 13 AS 4522/13 – Revision is permitted
Regarding the question of whether an insurance flat rate from the voluntary supplementary student insurance should be deducted from the plaintiff's income (child benefit of EUR 184 per month) - trivial contribution:
€30 more per month for Hartz IV through 1 euro student insurance
Guiding principle (editor)
1. The job center must provide the 16-year-old benefit recipient with monthly supplementary student insurance of one euro per year as appropriate insurance within the meaning of Section 6 Paragraph 1 No. 2 Alg II-V and Section 11b Paragraph 1 S. 1 No. 3 SGB II (see on the determination of the adequacy of private accident insurance for children and young people in terms of basic security law - BSG, judgment of February 16, 2012, B 4 AS 89/11 R).
2. The amount of the contribution is not relevant for the flat-rate deduction (cf. on the trivial contribution - BSG, judgment of June 4, 2014, B 14 AS 30/13 R).
Source: socialcourtsability.de
1.3 – LSG Schleswig-Holstein, judgment of November 14, 2014 (ref.: L 3 AS 134/12):
Principle Dr.
Manfred Hammel 1. In connection with the question of whether a job center has to take cable fees into account as part of the costs of accommodation in accordance with Section 22 SGB II, it cannot be argued that television reception is to be assigned to the “living” requirement.
2. A tenant in need of assistance can only regularly avoid these expenses in a case in which the usage fee due for the cable connection is a necessary part of the rent due as part of the operating cost billing.
3. Housing and accommodation only include those needs that serve to satisfy basic needs such as eating, sleeping and staying, including the storage of personal items.
4. This does not include the cable connection.
5. Expenses for cable connection fees are rather included in the needs covered in detail by the standard requirements (“…personal needs of daily life…” within the meaning of Section 20 Paragraph 1 Sentence 1 SGB II).
1.4 – LSG Saxony-Anhalt, resolution of October 9, 2015 (ref.: L 5 AS 643/15.B.ER):
Principle Dr.
Manfred Hammel 1. The legal validity of a declaration of commitment (“liability for living expenses”) signed in accordance with Section 68 of the Residence Act expires upon the granting of refugee status and the issuance of the residence permit in accordance with Section 81 Para. 3 Sentence 1 of the Residence Act in conjunction with Section 25 Para. 2 Sentence 1, 1st Old Residence Act.
2. Here, the non-German person who entered the federal territory on the basis of this declaration of commitment acquires a right of residence that is independent of securing a livelihood.
3. A residence permit in accordance with Section 25 Paragraph 2 Sentence 1, 1st Alternative Residence Act does not require the existence of an effective declaration of commitment issued in accordance with Section 68 Residence Act.
4. Ultimately, this declaration of commitment does not constitute a basis for the applicant to receive benefits from the person signing this document. Section 68 of the Residence Act only grants the responsible social authorities the possibility of recourse against the guarantor in relation to costs incurred for the applicant's living expenses .
1.5 - State Social Court of Saxony-Anhalt, decision of October 6, 2015 - L 5 AS 629/15 B ER - legally binding
Basic security for job seekers - request to submit a pension application (here not legal) - obligation to claim priority benefits - requirements for the exercise of discretion (here incorrect) - incomplete investigation of the facts - outdated pension information
On the requirements for the exercise of discretion when requesting early claim of a retirement pension.
There are serious doubts about the legality of the administrative decision, because discretion must be exercised with regard to the request under Section 12a SGB II to claim priority service, as well as with regard to a substitute application under Section 5 Paragraph 3 Sentence 1 SGB II.
Guiding principle (editor)
1. If the early claim of a retirement pension results in the applicant and her partner having to claim supplementary benefits in accordance with SGB However, this does not automatically lead to a binding decision in the sense of a reduction in discretion to zero in favor of the applicant. Rather, it can be assumed that the early old age pension can generally be claimed even if it only reduces the need for help.
2. In individual cases, however, it may be necessary to refrain from submitting an application if, due to special circumstances, a need for help under SGB .
3. In any case, when exercising discretion, the correct amount of the early retirement pension must be based on current information from the pension insurance provider. Exercising discretion based on an incorrect factual basis is generally an error in discretion (cf. LSG Saxony-Anhalt, decision of June 5, 2015, L 4 AS 237/15 B ER).
4. The request of the service provider in accordance with Section 12a SGB II to claim a reduced old-age pension early is an error of judgment if the decision is based on incompletely determined facts. This is the case if there are indications that pension information obtained in the past is no longer current.
Source: socialcourtsability.de
1.6 – Bavarian State Social Court, decision v.
October 20, 2015 - L 11 AS 617/15 NZB - legally binding complaint against the non-admission of the appeal rejected - assurance in accordance with Section 22 Paragraph 6 SGB II - before commissioning the moving company - ordering the moving van - rejection of moving costs
Guiding principle (editor)
If the assurance in accordance with Section 22 Paragraph 6 SGB II is not provided and the application is not submitted before the moving company is commissioned (Berlit in LPK - SGB II, 5th edition 2013, Section 22 para. 162), the job center does not have to cover any moving costs.
Source: socialcourtsability.de
Note:
Also regarding SGB 2 Sentence 5 SGB
1.7 - Mecklenburg-Western Pomerania State Social Court, decision of October 21, 2015 - L 8 AS 469/15 B ER
rejection of SGB II benefits due to assets; real estate utilization; Efforts to sell, lack of market value report
Guiding Principle (Juris)
1. A decision must be made by weighing the consequences if it is currently not possible to decide the legal question of whether those entitled to benefits have made sufficient efforts to exploit the property because this is inextricably linked to a substantially reliable, case-specific assessment of the market value of the property to be sold Property stands.
2. The obligation of the job center, which requires the utilization of real estate, to support the beneficiary, if necessary, by covering the corresponding costs in obtaining a necessary market value report in individual cases.
1.8 – Berlin-Brandenburg State Social Court, decision of June 30, 2015 – L 20 AS 1297/15 B ER
Basic security according to SGB II - activity as a foreign language teacher, employee within the meaning of Section 2 FreizügG/EU - employee status - subordinate, non-essential activity
Spanish language teacher is entitled to ALG II - an activity of 5 hours per week with a salary of EUR 200.00 cannot be viewed as “insignificant”.
Guiding principle (editor)
1. If the assessment of the “materiality” of an activity within the framework of Section 2 FreizügG/EU is based on the degree of coverage of the need according to SGB II, this can be done within the framework of Section 2 FreizügG/EU be of no importance when assessing an employee's status (but see LSG Berlin-Brandenburg of June 4, 2015 - L 29 AS 1128/15 B ER - juris, Rn. 28), because the right to freedom of movement according to Section 2 FreizügG/EU is straight not linked to the condition of being able to fully or partially cover the necessary living expenses through employment (as an employee or self-employed person).
2. The performance of an activity that - as in the present case - is remunerated on the basis of an employment contract with an hourly wage exceeding 8.50 euros cannot be viewed as insignificant and subordinate, since it does not generate subordinate financial resources and does not involve participation in working life becomes.
Source: socialcourtsability.de
Note:
This is probably also the result: SG Heilbronn, judgment of February 18, 2015 - S 10 AS 3035/13, nv
1.9 – State Social Court of North Rhine-Westphalia, decision v.
02.09.2015 - L 7 AS 551/15 B ER - and - L 7 AS 552/15 B - legally binding Turkish nationals are entitled to standard benefits according to SGB II.
Guiding principle (editor)
1. The exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II primarily affects Union citizens (which the applicant, as a Turkish citizen, does not belong to).
2. However, according to its broad wording, the application of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II is not limited to Union citizens. Other people whose right of residence arises solely for the purpose of looking for work are also recorded. As an example, the justification for the law states: “The exclusion of benefits in the revised sentence 2, first alternative, also covers the cases of Section 16 Paragraph 4 of the Residence Act: Foreigners who, after successfully completing a course of study, are staying in for another year for the purpose of looking for study-related employment Those who are allowed to stay in Germany must make their own living.” However, the prerequisite for the application of the exclusion of benefits is always that it is clear that looking for work is the only purpose from which the right of residence arises. For people who are not EU citizens, the reference point for this determination is primarily the residence permit and its legal basis.
3. The applicant's residence permit (to issue residence permits to Turkish citizens (see Section 4 Para. 5 Residence Act)) was not issued for the purpose of looking for work, but because, in the opinion of the immigration authority, the applicant fulfilled the requirements of Art. 6 1st indent ARB 1/80 fulfilled.
Source: socialcourtsability.de
1.10 – State Social Court of North Rhine-Westphalia, decision v.
11/03/2015 - L 2 AS 1101/15 B ER - and - L 2 AS 1102/15 B - legally valid credentials of the reason for the order - consideration of debts - interim legal protection
Guiding principle (editor)
1. The interim request for legal protection had to be denied success due to the lack of a reason for the order.
2. Debts can only constitute an emergency and therefore a reason for an order if, beyond the mere existence of arrears, repayment is absolutely necessary to eliminate significant disadvantages for the applicant. There is nothing apparent here to support such a situation.
3. According to the established case law of the Senate (LSG NRW, decision of June 19, 2015, L 2 AS 894/15 B ER), the existence of rental debts does not generally justify the issuance of an interim order. Only if there is an imminent fear of homelessness, which usually requires at least the pending eviction action, does an obligation to provisionally approve accommodation costs come into consideration. There is also no evidence here that these requirements are met.
Source: socialcourtsability.de
Note:
S.a. on this: LSG NRW, decision of. November 3, 2015 – L 2 AS 1543/15 B ER
1.11 - State Social Court of North Rhine-Westphalia, decision of October 28, 2015 - L 19 AS 1561/15 B ER - legally binding
basic security for job seekers - legality of the request to apply for an early old age pension (here affirmative) - discretionary decision of the basic security provider - interim legal protection
The requirements for the obligation to apply for a pension early are met in this case.
Guiding principle (editor)
1. It can be decided whether the application to order the suspensive effect of a lawsuit against a request to apply for a pension within the meaning of Section 12a SGB II before applying for a pension by the job center is inadmissible and therefore inadmissible (affirmative: LSG NRW, decision of July 10th .2015 - L 7 AS 818/15 BER; negative: LSG Berlin-Brandenburg, decision of December 16, 2014 - L 5 AS 2740/14 B ER).
2. According to Section 5, Paragraph 3, Sentence 1 of the SGB II, the service providers can submit an application for benefits from another provider under this book and can seek legal remedies if the beneficiary does not submit such an application themselves despite being asked to do so. The request to submit a pension application is also at the discretion of the service provider (see BSG, judgment of August 19, 2015 - B 14 AS 1/15 R).
3. According to the legal concept, the obligation to claim an early old-age pension is the principle and the lack of obligation until the age of 63 is reached or, if it is unfair, the exception (cf. BSG, judgment of August 19, 2015 - B 14 AS 1 /15 R).
4. According to the concept of Section 12a SGB II, it corresponds to the dutiful discretion of the service provider to generally make use of the authorization to request an application. Relevant discretionary considerations can therefore only be those that justify an atypical case in which the statutory rule of requesting an application to enforce the obligation to use priority services is to be waived. Only special hardships in individual cases come into consideration that do not constitute an unfair offense within the meaning of the Unfairness Ordinance, but make claiming the early retirement pension appear unreasonable due to exceptional circumstances (BSG, judgment of August 19, 2015 - B 14 AS 1/15).
5. The mere fact that receiving an early retirement pension is associated with permanent pension reductions and that the pension reduction may be. can cause a need for help according to SGB According to the files, there are no other circumstances that could justify a case of particular hardship and have not been put forward by the applicant.
6. The regulations of Section 12a SGB II and the Unfairness Ordinance are constitutionally harmless (cf. BSG, judgment of August 19, 2015 - B 14 AS 1/15).
Source: socialcourtsability.de
Legal tip:
Regarding the admissibility of a request from the basic security provider to the beneficiary according to Section 5 Paragraph 3 Sentence 1 SGB 2 in conjunction with Section 12a Sentence 1 SGB 2 to apply for an early old-age pension - there is a new procedure at the BSG under the ref.: B 14 AS 46/ 15 R pending.
2. Decisions of the social courts on basic security for job seekers (SGB II)
2.1 - SG Heilbronn, judgment of November 3rd, 2015 - S 11 AS 1274/15
Unemployment benefit II - special needs - initial equipment for pregnancy and birth - flat-rate reduction of the flat-rate amount for siblings not permitted - Section 24 Paragraph 3 Sentence 1 No. 2 SGB 2
The directive from the city of Heilbronn, according to which the administration is obliged to reduce benefits across the board from the second child onwards, is illegal.
Guiding principle (editor)
1. The job centers are not allowed to simply reduce the benefits for baby equipment for siblings across the board.
2. A reduction in benefits was not permitted. The 30-year-old plaintiff's other children are already older and in kindergarten.
Sat: Job center ordered to pay: www.swr.de
Legal tip:
Under certain circumstances it is possible to use items that already exist from older siblings (cf. LSG Niedersachsen-Bremen, decision of January 5, 2012 - L 9 AS 1191/11B, SG Bremen, decision of February 27, 2009 - S 23 AS 255/ 09 ER).
Note:
S.a. LSG NSB, Lower Saxony-Bremen, decision of March 15, 2012 - L 11 AS 1175/11 B - Special needs - Initial equipment during pregnancy and birth - Rejection due to services provided for an older sibling
2.2 – Magdeburg Social Court, decision of October 29, 2015 – S 22 AS 3193/15 ER
Basic security according to SGB II - costs of accommodation - for today's simple and appropriate living needs - reason for order - no tub or shower - necessity of the move (affirmative)
Guiding principle (RA Michael, Loewy)
1. A 25 sqm apartment that has neither a bathtub nor a shower and only a toilet and a sink outside the apartment in the stairwell no longer meets today's simple and basic living needs. In this case, a move is necessary.
2. A direct assignment of the rent payment, which results in the person in need of assistance only having half of their standard benefit available each month, constitutes a reason for an order.
Source: anwaltskanzlei-loewy.de
Note:
S.a. LSG Saxony-Anhalt, decision of March 31, 2011 - L 5 AS 359/10 B ER - Moving into an apartment with the lowest standard of equipment (lack of seclusion, no central heating, no bathroom) is generally unreasonable for a recipient of SGB II benefits. Accordingly, living conditions of the lowest standard are usually long-term and unreasonable and justify the need to move; unless the benefit recipient moved into the accommodation knowing that it was unreasonable and consciously accepted the given living conditions.
Legal tip:
LSG Baden-Württemberg, decision of January 21, 2015 - L 1 AS 5292/14 ER-B - Even if the accommodation does not have a bathroom or kitchen, it can be suitable as accommodation within the meaning of Section 22 Paragraph 1 SGB II (BSG, judgment of December 16, 2008 - B 4 AS 1/08 R).
2.3 – Berlin Social Court, decision of October 21, 2015 (ref.: S 203 AS 19872/15 ER):
Principle Dr.
Manfred Hammel 1. From Section 44a Paragraph 1 Sentence 7 SGB II, in the event that there is a dispute about the continued earning capacity of recipients of unemployment benefit II (Section 7 Paragraph 1 Sentence 1 No. 2 SGB II in conjunction with Section 8 Paragraph 1 SGB II) a seamless regulation based on the model of § 145 SGB III (reduction in performance).
2. In disputes about the earning capacity of recipients of benefits according to §§ 19 ff. SGB II, the effect should not arise that this clientele does not receive benefits from either the job center according to SGB II or the social welfare office according to SGB XII to cover the necessary living expenses.
3. Section 44a Paragraph 1 Sentence 7 SGB II also applies in the event that the SGB II provider assumes a lack of earning capacity but does not work towards clarifying the relevant points with the responsible social welfare provider in accordance with Section 86 SGB X.
4. The job center must not simply assume that she is unable to work without having contacted the responsible social welfare agency, and in particular it must not simply assume that the applicant has to submit an application for the granting of benefits in accordance with SGB XII. This is an inadmissible circumvention of the administrative procedure provided for in Section 44a SGB II.
Note:
See contribution from Attorney Kay Füßlein, Berlin: Employable until the opposite is determined by the responsible provider: www.ra-fuesslein.de
2.4 – Dresden Social Court, judgment of
09/04/2015 – S 40 AS 2451/13 -. The appeal is permitted Unemployment benefit II - accommodation and heating - adequacy test - single-person household in Dresden - requirements for a coherent concept of the basic security provider - request to reduce costs
Hartz IV recipients in one-person households in Dresden can claim higher maximum housing costs.
Guiding principle (editor)
1. Neither the IWU I report, which became the basis of the city council resolution of November 24th, 2011 and is valid for the period from December 1st, 2010, nor the IWU II report, which became the basis of the city council resolution of May 30th, 2013 and claimed validity from January 1, 2013, meet the requirements of case law for a so-called “conclusive concept” for determining the limits of appropriateness.
2. A change of apartment as a cost-cutting measure due to unreasonably high heating expenses is only reasonable if the overall gross heating costs are lower overall in an alternative apartment (cf. BSG, judgment of June 12, 2013, B 14 AS 60/12 R).
3. On the other hand, the use of the “gross rent” as a discretionary standard for a request to reduce costs also has the consequence that a move cannot be demanded if the gross rent is too high if the heating costs of the apartment are so extremely low that the overall cost overrun is Gross rent is offset by the missing heating costs.
Note:
See also: September 14, 2015 - Press release from the Dresden Social Court
Hartz IV: Model case on the reasonable costs of accommodation in Dresden decided: www.justiz.sachsen.de
3. Decisions of the social courts on asylum law
3.1 – Hildesheim Social Court, judgment of October 7, 2015 (ref.: S 42 AY 1/12):
Principle Dr.
Manfred Hammel 1. When assessing the aspect of abuse of law within the meaning of Section 2 Paragraph 1 AsylbLG, the entire duration of the stay of a non-German person in the federal territory must be taken into account.
2. It must be proven that there was intent on the part of the applicant regarding an action that influenced the length of stay.
3. Applicants are not responsible for not having a passport if they have sufficiently fulfilled their foreign cooperation obligations (Section 82 Paragraph 1 Sentence 1 Residence Act).
4. The burden of proof that the documents submitted by applicants are forgeries lies with the authority responsible for implementing the AsylbLG in accordance with Section 10 of this law.
4. BAMF leaflet on the new target group in integration language courses
The corresponding information sheet from the BAMF can be found in the appendix. This form can also be downloaded in Arabic, English, Farsi, French, Kurdish and Tigrinian from the BAMF homepage: www.bamf.de
5. PKH procedure – “immediately” now means “immediately” – A contribution from Attorney Mathias Klose
Based on Section 121 of the German Civil Code (BGB), the term “immediately” has so far been given the meaning “without culpable delay” in general and across all legal areas. Someone acts without “culpable hesitation” if they do not act immediately, but within a reasonable period of time given the circumstances of the individual case.
The 4th Chamber of the Regensburg Social Court obviously does not adhere to this definition and probably only wants to treat immediate action as “immediate”:
The author applied for an interim order to be issued for a client in the area of SGB II (Hartz IV) (Section 86b Para. 2 SGG) and applied for approval of legal aid (PKH) and legal representation for the interim legal protection proceedings. To substantiate the personal and economic circumstances, the formal declaration of personal and economic circumstances was used and sent to the court together with the application on October 8, 2015.
Next: Sozialrecht-aktuell.blogspot.de
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
