1. Decisions of the Federal Social Court of December 17, 2015 on social assistance (SGB XII)
1.1 – BSG, judgment of December 17, 2015 – B 8 SO 10/14 R
Guiding principle (editor)
1. Services for accommodation and heating according to SGB
2. Even if such an effective obligation were not to be affirmed, it would be sufficient if the adult plaintiff and her parents actually agreed on sharing the costs.
Source: juris.bundessocialgericht.de
BSG, judgment of December 17, 2015 - B 8 SO 24/14 R
On the inapplicability of Section 116a SGB 12 if an application is submitted before April 1, 2011
Note from the court:
1. Based on the established case law of the 7th and 8th Senate that retroactive provision of social assistance benefits within the framework of a review procedure is not possible if the need no longer exists after the end of receipt of benefits (up to the last point in time relevant for the factual authority), However, it should be noted that it must be clarified in particular whether the plaintiff was still in need since she received her pension (from November 2009).
2. Only if there was continuous need after the end of benefit receipt (from August 1, 2006) would higher benefits be paid retroactively from January 1, 2005. In this respect, despite the legislator's deletion of the transitional regulation (applications before April 1, 2011) of Section 136 of the Twelfth Book of the Social Code - Social Assistance - (SGB , but the usual four-year period.
Source: juris.bundessocialgericht.de
Legal tip:
Likewise LSG NRW, judgment from June 22, 2015 – L 20 SO 103/13; Greiser in: jurisPK-SGB XII 2nd edition Rz. 30.1
2. Decisions of the Federal Social Court of December 16, 2015 on basic security for job seekers (SGB II)
2.1 - BSG, judgments of December 16, 2015 - B 14 AS 15/14 R, B 14 AS 18/14 R and B 14 AS 33/14 R
Exclusion of SGB II benefits for Union citizens – social assistance in the event of actual permanent residence
The 14th Senate follows the case law of the 4th Senate from December 3, 2015 (see deadline report No. 54/15 No. 2 - 4).
Guiding principle (editor)
A claim against the social welfare provider can - subject to the requirements of the individual case still to be examined within the framework of Section 23 Paragraph 1 Sentence 3 SGB 20 Paragraph 1 GG (cf. BVerfG of February 9, 2010 - 1 BvL 1/09 et al. - BVerfGE 125, 175-260).
Source: juris.bundessocialgericht.de
3. Decisions of the Federal Social Court of June 25, 2015 on basic security for job seekers (SGB II)
3.1 - BSG, judgment of June 25, 2015 - B 14 AS 30/14 R
On obligations to cooperate and investigate
Guiding principle (editor)
If the benefit authority wants to revoke a benefit approval, it must determine the relevant requirements itself. In the event of a lawsuit, it cannot delegate this task to the courts.
Source: socialcourtsability.de
4. Decisions of the state social courts on basic security for job seekers (SGB II)
4.1 - State Social Court of North Rhine-Westphalia, decision of December 14, 2015 - L 6 AS 1258/15 B ER - legally binding
Reason for order KdU in expedited proceedings - landlord agrees to the suspension of enforcement of the default judgment
In addition to the ongoing impairment due to the lack of accommodation costs as part of the benefit that ensures a humane minimum subsistence level (Alg II) (Article 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law), the apartment can already be specifically endangered as the center of life and thus the fundamental right under Art 13 GG may be so impaired that a regulatory order is necessary.
Guiding principle (editor)
1. Even at an earlier (or even later) point in time - the circumstances of the individual case are decisive - significant disadvantages can be expected which make waiting until a decision on the main matter appears unreasonable (cf. Senate resolution from May 13, 2015 – L 6 AS 369/15 B ER).
2. The yardstick here cannot only be the legal framework for termination without notice.
3. In order to grant effective legal protection, it seems necessary to assess the essential disadvantage as a reason for the order, regardless of a specific time and procedural window, taking into account all the circumstances of the individual case. Not only circumstances related to the loss of the old apartment, but also financial aspects when procuring new living space can be important, such as the general situation on the local housing market, financial disadvantages in the form of reminder costs and interest directly from the Tenancy and supply contracts, the ongoing disruption of the trust relationship in relation to the tenancy as a long-term obligation, costs of (an) eviction action, moving costs, if necessary storage costs, loss of social ties and much more.
Source: socialcourtsability.de
4.2 - State Social Court of North Rhine-Westphalia, decision of November 30, 2015 - L 19 AS 1713/15 B ER - legally binding
No exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II for Bulgarian applicant - custody of 2 underage children - negation of the need for help but by taking into account the partner's income
Guiding principle (editor)
1. The applicant exercises custody of two minor Union citizens. From this legal status, taking into account the requirement of equal treatment of nationals in Article 18 TFEU, she can derive a right of residence in accordance with Section 11 Paragraph 1 Sentence 11 FreizügG/EU in conjunction with Section 28 Paragraph 1 Sentence 1 No. 3 Residence Act if her children have a material right of residence (see also Senate judgment of June 1, 2015 - L 19 AS 1923/14).
2. This is the case here.
3. Your children have a right of residence as family members within the meaning of Section 3 Paragraph 2 No. 1 FreizügG/EU because their father has an employment subject to social insurance contributions and is therefore an employee within the meaning of Section 2 Paragraph 2 No. 1 FreizügG/EU (see also LSG NRW, resolution of September 30, 2015 - L 19 AS 1491/15 B ER).
Source: socialcourtsability.de
4.3 – State Social Court of North Rhine-Westphalia, decision of November 30, 2015 – L 19 AS 1799/15 B ER – legally binding
Guiding principle (editor)
1. No interim legal protection against a request to report if the deadline has already passed.
2. The need for legal protection for expedited proceedings pursuant to Section 86 Paragraph 1 No. 2 SGG is missing if the court ordering the suspensive effect of an objection or an action for annulment is not necessary to protect the complainant's rights and recourse to the court would therefore be unnecessary ( cf. LSG NRW, decision of July 10, 2015 - L 7 AS 818/15 B ER mwN). The reporting requests were completed at the time of the reporting date stated in them in accordance with Section 39 Para. 2 SGB X. This means that as of the reporting dates that have passed, the regulatory effect of the reporting dates no longer applies (BSG, judgment of April 29, 2015 - B 14 AS 20/14 R). The order of the suspensive effect according to Section 86b Paragraph 1 Sentence 1 No. 2 SGG requires that the contested administrative act has not yet been completed (LSG Bavaria, decision of May 16, 2013 - L 11 AS 250/13 B ER) .
Source: dejure.org
4.4 - LSG Hessen, judgment of November 13, 2015 - L 9 AS 192/14
Learning support in accordance with Section 28 Paragraph 5 SGB II - school regulations of the state of Hesse -
The job center will not cover the costs of learning support if, from the perspective of the applicant and the school, additional learning support only appears desirable and sensible.
Guiding principle (editor)
1. If there is no risk of being transferred, the student is not entitled to learning support.
2. According to the subject teacher's statement, which must be taken into account in the forecast decision, the need to promote learning was to stabilize a satisfactory level of performance in the subject of English. However, this is not an essential learning goal within the meaning of Section 28 Paragraph 5 SGB II. Because the stabilization of a grade level that is rated as better than sufficient is no different than the mere improvement of grade levels or an improvement in the grade average in general, which is not essential learning objectives are recognized.
3. According to the will of the legislature, the same applies to improvements to achieve a better school type recommendation, which is generally not a reason for promoting learning (cf. BT-Drucks. 17/3404, p. 105).
Source: socialcourtsability.de
4.5 - Saxon State Social Court, decision of November 12, 2015 - L 7 AS 889/15 B ER - legally binding
There are no serious concerns about the legality of the administrative act that replaces it.
Guiding principle (editor)
1. Since an integration agreement was not concluded with the applicant, the respondent was able to issue a decision replacing the integration agreement (BSG, judgment of February 14, 2013 - B 14 AS 195/11 R).
2. According to the principle of promoting and demanding, the integration agreement or the replacing administrative act must contain concrete and definable obligations of both contractual partners (LSG North Rhine-Westphalia, resolution of November 26, 2012 - L 2 AS 2052/12 B). Obligations must be clearly and unambiguously determined in an integration administrative act that replaces the integration agreement. This means that the integration efforts required of the person in need of help are so specific in terms of type, scope, time and place that the requested action can be easily determined (LSG North Rhine-Westphalia, decision of October 18, 2006 - L 1 B 27/06 AS ER ; LSG North Rhine-Westphalia, decision of September 9, 2014 - L 7 AS 1220/14 B ER).
3. Given these requirements, there are no serious concerns about the legality of the administrative act replacing the integration agreement.
4. The obligation to make at least three personal efforts per calendar month cannot be objected to (LSG North Rhine-Westphalia, resolution of May 21, 2013 - L 7 AS 112/13 B ER).
5. The decision is also sufficiently specific within the meaning of Section 33 SGB This also applies to the applicant's own efforts and the respondent's corresponding obligation to bear the application costs for a maximum of 50 applications per calendar year (LSG North Rhine-Westphalia, decision of May 21, 2013 - L 7 AS 112/13 B ER).
Source: socialcourtsability.de
5. Decisions of the social courts on basic security for job seekers (SGB II)
5.1 – Berlin Social Court, judgment of December 11, 2015 – S 149 AS 7191/13
Bulgarian citizens are not entitled to SGB II benefits, nor to SGB XII benefits. It cannot be inferred from the constitution that the plaintiff is entitled to benefits to secure a living according to SGB II or to assistance with living expenses according to SGB XII (aA with regard to SGB /15 R -, deadline report no. 54/15).
No social benefits for Union citizens looking for work – Berlin Social Court contradicts the Federal Social Court
Guiding principle (editor)
1. The applicant is excluded from basic security benefits for job seekers due to the sole right of residence to look for work in accordance with Section 7 Paragraph 1 Sentence 2 No. 2 SGB II, whereby this exclusion is also compatible with European Union law is.
2. Insofar as the Federal Social Court is of the opinion that those people who are able to work due to their state of health, but are entitled to assistance with subsistence according to SGB are excluded from SGB II (BSG, judgment of December 3, 2015 - B 4 AS 44/15 R -, deadline report No. 54/15, ; also Grube/Wahrendorf, SGB XII, 5th edition, § 21 Rn. 5) , the chamber does not follow this.
3. The legislature has made it clear that foreigners who are able to work should be excluded from benefits under SGB Judgment of June 18, 2015 – L 31 AS 100/14).
4. However, there was also no reason to suspend the proceedings and, according to Article 100 Paragraph 1 of the Basic Law, a decision by the Federal Constitutional Court on the question of the compatibility of the exclusions from benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II and Section 21 Sentence 1 SGB XII. It cannot be inferred from the constitution that the plaintiff is entitled to benefits to secure a living according to SGB II or to assistance with living expenses according to SGB XII (aA with regard to SGB /15 R -, deadline report no. 54/15).
5. There is no constitutional objection if Union citizens are referred to claiming social benefits in their home country.
Source: socialcourtsability.de
Legal tip: a. A. also BSG, judgments from December 16, 2015 - B 14 AS 15/14 R, B 14 AS 18/14 R and B 14 AS 33/14 R
Note:
S.a. No social benefits for EU citizens looking for work
In contrast to the most recent BSG case law, the SG Berlin has decided that an EU citizen who only has a right of residence in Germany to look for work is neither entitled to benefits under SGB II (“Hartz IV”) nor to social assistance under SGB XII has.
Source: Press release from SG Berlin v. December 16, 2015: www.juris.de
5.2 – SG Detmold, judgment by. December 10, 2015 – S 28 AS 1979/12
Lack of a coherent concept - use of the housing benefit table - KdU-Höxter overturned. The adequacy limit of the Höxter job center is not based on a coherent concept.
Guiding principle (editor)
1. The basic rental price of EUR 4.09, which the JC considers to be appropriate, is not based on a coherent concept.
2. This results from the fact that when newspaper advertisements are evaluated alone, neither the validity nor the representativeness of the data collected is guaranteed. The data compiled by the JC based on newspaper advertisements is subject to randomness with regard to the information provided by the landlord, also limited by the permissible characters of an advertisement text (cf. LSG Niedersachsen-Bremen, judgment of April 3, 2014 - L 7 AS 786/11) .
3. Due to the nature of the data collection, any improvement of this concept by the JC is impossible. The coherent concept cannot be replaced by a cross-check.
4. The mere fact that it was possible to rent living space at the value deemed appropriate by the JC does not mean that a value was correctly determined (BSG, judgment of December 17, 2009 - B 4 AS 50/09 R ).
5. In the absence of sufficient available data, the values in the housing benefit table plus a security surcharge of 10% must be used.
5.3 – SG Augsburg, judgment by. 12/07/2015 – S 8 AS 860/15 – Appeal admitted
The rental costs were not adjusted to the conditions in Augsburg in 2015. Verdict could cost Augsburg millions
The underlying concept of the basic security provider for the city of Augsburg is not – coherent.
Guiding principle RA Daniel Zeeb, Augsburg
1. The adequacy limit of the Augsburg city job center has not been based on a coherent concept since July 1st, 2015, since the increase required at this point in time at the latest was not based on the data from the local housing market and due to the missing The concrete availability necessary for data collection has not been proven.
2. In the absence of sufficient available data, the values in the housing benefit table plus a security surcharge of 10% must be used.
Source: socialcourtsability.de
5.4 – Berlin Social Court, judgment of August 6, 2015 (ref.: S 156 AS 17196/13):
Principle Dr.
Manfred Hammel 1. § 31a Para. 1 SGB II does not address any fundamental constitutional concerns, and in particular does not violate the fundamental right to a humane subsistence minimum arising from Article 1 of the Basic Law in conjunction with the welfare state principle (Art. 20 Para. 1 of the Basic Law).
2. This fundamental right also does not guarantee a right to a certain level of performance that is independent of obligations to cooperate and personal activities.
3. The provisions of Sections 31 ff. SGB II provide a mechanism for officially responding to the failure of the beneficiary to make appropriate efforts.
4. These provisions ensure a “last basic supply” even if benefits from the job center are completely stopped.
5. The possibility of assuming rental debts is regulated in Section 22 Paragraph 8 SGB II.
6. The regulations resulting from §§ 31 ff. SGB II neither result in forced labor within the meaning of Article 12 Paragraph 2 GG nor a compulsion to work. The legal possibility of reducing and eliminating support for living expenses according to SGB II in cases in which a person entitled to benefits refuses reasonable work offered to them does not constitute an exercise of coercion within the meaning of Article 12 Paragraph 2 of the Basic Law the state merely makes the granting of social benefits dependent on reasonable personal efforts to secure the necessary subsistence, which is not constitutionally objectionable.
7. The scope of protection of the fundamental right to physical integrity (Art. 2 Para. 2 GG) is also protected here. With Section 31a Paragraph 3 SGB II, the legislature has provided sufficient relief through the possibility of granting additional benefits in kind. During a correspondingly drastic sanction, there is a right to “emergency care” from the statutory health insurance provider for acute illnesses and pain conditions in accordance with Section 16 Paragraph 3a SGB V.
8. The offense of repeated breach of duty according to Section 31a Paragraph 1 Sentences 4 and 5 SGB II does not only exist if the previous sanction decision is final. If this is not the case, the legality of the previous sanction must also be examined when assessing the legality of the subsequent sanction.
5.5 – Dortmund Social Court, judgment of April 30, 2015 (ref.: S 30 AS 986/13):
Principle Dr.
Manfred Hammel 1. The expense allowance granted by the judiciary to a legal guardian in accordance with Section 1835 Paragraph 1 Sentence 1 BGB represents income to be taken into account by the job center to reduce the needs of an employable person entitled to benefits (Section 7 Paragraph 1 Sentence 1 SGB II) (Section 11 Paragraph 1 Sentence 1 SGB II).
2. The payment of this expense allowance is made on the basis of a public law provision, because in the event that a person under legal care is destitute, the state treasury is responsible for paying the amount in accordance with Section 1835a Paragraph 3, 1st half-sentence of the German Civil Code (BGB). 1 sentence 1 BGB.
3. In contrast to diets, this expense allowance does not contain any element that is intended to compensate for loss of earnings and to help secure one's livelihood. This is purely a reimbursement of expenses.
Legal tip:
Also: Cottbus Social Court, judgment of August 20, 2014 - S 2 AS 3428/12
6. Decisions of the state social courts on social assistance (SGB XII)
6.1 - LSG-Nds-Bremen, resolution of December 8, 2015 - L 8 SO 281/15 B ER
Latvian citizens are entitled to benefits to secure their livelihood in accordance with SGB XII
Note (court)
1. The exclusion of benefits applies especially to those who have no material right to freedom of movement or no right of residence in Germany (see BSG, deadline report of December 3, 2015 - B 4 AS 44/15 R -), because it would be inconsistent with the assessment and incompatible with the meaning and purpose of the exclusion of benefits if applicants who, for example, do not even start looking for work, give up their original intention to look for work, or whose job search turns out to be unsuccessful, would not be included in the exclusion of benefits and should be entitled to receive benefits in accordance with SGB II (cf. in detail: LSG Baden-Württemberg, decision of June 29, 2015 - L 1 AS 2338/15 ER-B - juris Rn. 34 with numerous further evidence, including the opposing view).
2. In the case of a permanent stay of more than six months, the discretion to which the social welfare provider is entitled is due to the system of social welfare law and the constitutional requirements of the BVerfG, according to which the fundamental right to guarantee a humane minimum subsistence is granted to German and foreign citizens who are staying in the Federal Republic of Germany , is equally entitled as a human right (BVerfG, judgment of July 18, 2012 - 1 BvL 10/10, 1 BvL 2/11), but be reduced to zero in such a way that at least help with living expenses must be provided on a regular basis in the statutory amount (BSG, deadline report dated December 3, 2015, ibid).
Source: Lawyers Beier & Beier, Gröpelinger Heerstraße 387, 28239 Bremen: www.kanzleibeier.eu
7. Decisions of the social courts on social assistance (SGB XII)
7.1 - SG Darmstadt, decision of December 4th, 2015 - S 17 SO 211/15 ER
Granting of benefits in accordance with Section 23 Para. 1 SGB XII to an EU foreigner (based on BSG, judgment of December 3rd, 2015 - B 4 AS 59/ 13 R)
Guiding principle (editor)
1. The applicant is not excluded from receiving benefits in accordance with Section 21 Sentence 1 SGB XII.
2. There is also no exclusion of benefits according to Section 23 Paragraph 3 Sentence 1 SGB XII.
3. The requirements of the 2nd variant of Section 23 Paragraph 3 Sentence 1 SGB
4. As part of the interim legal protection, the applicant must also be granted benefits in accordance with Section 23 Paragraph 1 Sentence 3 SGB XII to help with living expenses and also help with pregnancy and maternity.
5. Here too, this claim arises from Section 23 Paragraph 1 Sentence 3 SGB XII i. V. with the constitutionally guaranteed right to the granting of the subsistence minimum from Article 1 Paragraph 1 i. V. m. Article 20 Paragraph 1 of the Basic Law.
6. The discretion of the social welfare provider according to Section 23 Paragraph 1 Sentence 3 SGB , judgment of December 3, 2015 – B 4 AS 59/13 R).
7. It is not likely that the applicant, as a harvest worker, could have a claim to insurance cover in the statutory health insurance according to Section 5 Paragraph 1 No. 1 SGB V in conjunction with Section 133 Paragraph 4 SGB V, because it is not even clear that the applicant, as a dependent employee, was not subject to compulsory insurance in statutory health insurance in accordance with Section 5 Paragraph 1 SGB V.
Note: a. A. Berlin Social Court, judgment of December 11, 2015 - S 149 AS 7191/13
8. Decisions of the social courts on asylum law
8.1 – Hildesheim Social Court, judgment of December 4, 2015 (ref.: S 42 AY 169/09):
Principle Dr.
Manfred Hammel 1. When assessing the question of the abuse of law in influencing the duration of stay in the federal territory within the meaning of Section 2 Paragraph 1 AsylbLG, the focus must be on the entire period of presence in the country and on the existence of an intentional act in this regard.
2. Section 2 Paragraph 1 AsylbLG does not apply in any case if any obligation to leave the country - regardless of the behavior of a foreigner - could not have been carried out in the entire period from the time of the abuse of rights alleged by the authorities. This is the case if a person who is required to leave the country is assessed by a doctor as unfit to travel due to illness.
8.2 – Hildesheim Social Court, judgment of November 4, 2015 (ref.: S 42 AY 46/12):
Principle Dr.
Manfred Hammel 1. If you are entitled to benefits in the follow-up asylum procedure in accordance with Section 1 Paragraph 1 No. 7 AsylbLG, ie for holders of a residence permit in accordance with Section 55 AsylVfG, there can be no restriction of entitlement in accordance with Section 1a AsylbLG. The wording of Section 1a AsylbLG speaks against this.
2. Entry into the federal territory to make use of health care services provided by the AsylbLG service provider in accordance with Section 4 AsylbLG in order to ensure health care for a child in Germany that is not possible in the home country satisfies the offense of Section 1 No. 1 AsylbLG. There is a final connection between entry and the use of public funds.
9th BVerwG, December 17, 2015: No residence permit until the asylum procedure has been completed
A foreigner is not entitled to a residence permit if the asylum procedure has not yet been fully completed; This also applies if the Federal Office has granted protection against deportation, but has rejected the application for international protection (refugee protection, subsidiary protection) and the foreigner seeks further protection in court.
BVerwG 1 C 31.14 – judgment of December 17, 2015
Lower courts:
VGH Kassel 6 A 2206/13 – judgment of October 1st, 2014
VG Frankfurt/Main 1 K 2457/12.F – judgment of June 6th, 2013
www.bverwg.de
10. VG Osnabrück: Lawsuit by an EU citizen for BAföG benefits successful
OSNABRÜCK. The 4th Chamber of the Osnabrück Administrative Court upheld the lawsuit filed by a Bulgarian citizen for training support benefits in a ruling dated December 10, 2015. The plaintiff is entitled to this partly based on European law regulations and partly under current national law, the Federal Training Assistance Act (BAföG).
The judgment (4 A 253/14) is not yet legally binding. The chamber allowed the appeal against the judgment due to its fundamental importance.
Press information 24/2015 from December 14, 2015 - www.verwaltungsgericht-osnabrueck.niedersachsen.de
11. SGB Benefits for Union Citizens – BSG case law + current working aid
Claudius Voigt has kindly created another smaller working aid for the Paritätischen following the BSG case law, which you can access at the following link:
www.migration.paritaet.org
The working aid and further information on the topic of “EU immigration” are available on our Migration homepage: www.migration.paritaet.org
12. SGB II (Hartz IV): Decisions from January 1st, 2016 may be unlawful - Attorney Denis König
Source: www.anwalt.de
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
