1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG Lower Saxony Bremen, decision of 13.06.2014 – L 15 AS 61/13 B ER
The job center is ordered by way of an interim injunction to grant the children social benefits for each day they visit their father during visitation periods exceeding 12 hours, without taking into account the father's maintenance payments as income for the temporary household with him.
Child support is not "readily available" in a temporary community of need.
Guiding principle (Editor)
1. The need for benefits of a child's permanent household or community of need on the one hand and the temporary community of need with a parent entitled to visitation rights on the other hand must be determined independently of each other, not only with regard to the fictitious crediting of child benefit pursuant to Section 11 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), but also with regard to the determination of the total relevant income. In applying the principle of factual income under Section 11 Paragraph 1 Sentence 1 of the SGB II, creditable income of one community or the other arises only to the extent that it actually receives monetary or material resources (cf. Federal Social Court, Judgment of June 12, 2013 – B 14 AS 50/12 R).
2. Applying these principles, the job center was correct in taking the maintenance payments of the children's father into account as reducing his income, because they are not available to him for the purpose of covering his living expenses, but rather flow into the permanent household community between the children and their mother, where they help to prevent the emergence of need.
3. In contrast, in the temporary community of need with the father, maintenance payments do not lead to an increase in income based on the children's status as creditors, because the prerequisite for this is lacking an actual inflow of income in money or money's worth (§ 11 para. 1 sentence 1 SGB 2).
4. The job center cannot be heard to argue that a determination can only be made retrospectively. It fails to recognize that, as a consequence of the temporary household unit, the children's social assistance entitlements must generally be determined together with the father's benefit entitlements.
Legal tip: see also Social Court Düsseldorf, decision of 07.04.2015 – S 12 AS 537/15 ER (not published) and regarding SGB XII § 73: Higher Social Court Lower Saxony-Anhalt, decision of 07.11.2008, L 8 SO 134/08 ER – travel expenses in connection with visitation rights as an advance payment and not only afterwards
1.2 – State Social Court of Saxony-Anhalt, decision of 15 December 2015 – L 4 AS 478/14 NZB – legally binding
No reimbursement of medication costs as special needs (ear drops – non-prescription medicines or remedies)
Diabetes mellitus does not cause an increased calorie requirement or any other increased nutritional requirement within the meaning of Section 21 Paragraph 5 of the German Social Code, Book II (SGB II).
Principle (Editor)
1. According to the Federal Social Court (BSG), judgment of December 12, 2013, file number: B 4 AS 6/13 R, a medical need can only be considered unavoidable within the meaning of basic income support law, due to the subsidiary nature of this benefit system, if neither statutory health insurance nor third parties are obligated to provide the service, i.e., to cover the need. The question of whether the costs of medication will be covered as part of medical treatment must first be clarified with the benefit recipient's health insurance provider. Regarding the therapeutic necessity of a specific medical treatment and the requirements for its proof, the same conditions apply to benefit recipients under Book II of the German Social Code (SGB II) as to other individuals with statutory health insurance (cf. BSG, judgment of December 15, 2010, file number: B 14 AS 44/09 R).
2. The remaining costs for healthcare, which, among other things, for medically necessary but not covered by the statutory health insurance's obligation to provide benefits, must be paid by the recipients of benefits under the SGB II benefit themselves under the aspect of the statutory health insurance's personal responsibility, are – as long as no costs are claimed that exceed what is provided for in the standard benefit for the remaining costs for healthcare – included in the standard benefit.
Source: socialcourtsability.de
Legal tip: similarly regarding the exclusion of the basic income support provider from covering drug costs – Social Court Neuruppin, judgment of 12 October 2015 – S 26 AS 259/11
1.3 – Berlin-Brandenburg State Social Court, Judgment of 17 September 2015 – L 31 AS 1894/14
Life insurance – special hardship – deafness allowance
For the applicant's life insurance policy, the conditions for the exemption of assets pursuant to Section 12 Paragraph 3 No. 6, 2nd alternative SGB II were met, according to which assets do not include things or rights insofar as their realization would constitute a particular hardship for the person concerned.
No use of the accumulated deaf person's allowance as retirement provision, insofar as its use would constitute a particular hardship for the person concerned.
Principle (Editor):
In this case, particular hardship arises from the fact that the applicant actually saved the assets paid into the life insurance contract for retirement and that this consists exclusively of money that was granted to her as a deafness allowance (cf. also Federal Social Court, judgment of April 15, 2008, file no. B 14/7b AS 6/07 R – regarding pain and suffering damages). Even "saved" pain and suffering damages are privileged in this respect pursuant to Section 12 Paragraph 3 Sentence 1 No. 6 of the German Social Code, Book II (SGB II). It is within the injured party's freedom of disposition how they use the amounts resulting from a damaging event to compensate for non-material damages (for a comparable assessment regarding "saved" blindness allowance, cf. Federal Social Court, judgment of December 11, 2007 – B 8/9b SO 20/06 R –).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Dortmund, Judgment of 04.12.2015 – S 27 AS 4097/12
Regarding the question of how long learning support is required and specifically whether the learning support should only be granted until the end of the summer holidays – since decisions about promotion are made at this time – or also beyond (here in favor)
SG Dortmund regarding learning support according to § 28 para. 5 SGB II:
For each student, it must be assessed based on the specific circumstances of the individual case whether there is a suitability and necessity for learning support and to what extent this support should be provided.
Guiding principle (Editor)
1. Benefits for education and participation in the form of the reimbursement of tutoring costs are not limited to a period of two months.
2. There is no time limit for learning support arising from the legal requirements.
3. The decisive factor is the specific support needs of the respective child.
4. Since the wording of Section 28 Paragraph 5 of the German Social Code, Book II (SGB II) does not specify an explicit time limit, long-term learning support to achieve an appropriate level of performance may also be possible (see also the decision of the Lower Saxony State Social Court (LSG NSB) of June 22, 2015 – L 13 AS 107/15 B ER). The purpose and intent of the provision also argue against limiting support to only short-term periods; the explanatory memorandum to the law specifically focuses on the sustainability aspect and the connection between education and poverty reduction (see the decision of the Lower Saxony State Social Court (LSG) of December 18, 2014 – L 2 AS 1285/14 B ER).
5. The blanket limitation of the entitlement imposed by the authority contradicts the realization of equal opportunities for children of long-term unemployed parents, as called for by the Federal Constitutional Court.
Legal tip:
Even in case law and legal literature, there is broad agreement – regardless of the specific details of the school regulations in each state – that promotion to the next grade level or a sufficient level of performance are essential learning objectives within the meaning of Section 28 Paragraph 5 of the German Social Code, Book II (LSG Hessen, Judgment of November 13, 2015 – L 9 AS 192/14 –; LSG Niedersachsen-Bremen, Decisions of June 22, 2015 – L 13 AS 107/15 B ER – and of February 28, 2012 – L 7 AS 43/12 B ER –; LSG Schleswig-Holstein, Decision of March 26, 2014 – L 6 AS 31/14 B ER –; SG Dresden, Judgment of January 6, 2014 – S 48 AS 5789/12 –; SG Dortmund, Judgment of December 20, 2013 – S 19 AS 1036/12 -; Social Court Marburg, decision of November 1, 2012 – S 5 AS 213/12 ER -; Social Court Wiesbaden, decision of January 3, 2012 – S 23 AS 899/11 ER -; Social Court Bremen, decision of April 14, 2011 – S 23 AS 357/11 ER -; Luik in: Eicher, SGB II, 3rd ed. 2013, § 28 para. 42; contra Voelzke in: Hauck/Noftz, SGB II, as of July 2015, § 28 para. 80).
2.2 – SG Dortmund, Judgment of 04.12.2015 – S 27 AS 279/13 – The appeal was admitted.
Travel expenses related to visitation rights (here 8 km) – de minimis threshold – additional needs according to § 21 para. 6 SGB II – travel expenses allowance within the standard allowance
It's only 8 km to the children, yet the Jobcenter has to cover the father's travel expenses.
Guiding principle (Editor)
: 1. According to Section 21 Paragraph 6 Sentence 1, additional needs are recognized for benefit recipients insofar as an unavoidable, ongoing, and not merely one-off special need exists in an individual case. According to Sentence 2, additional needs are unavoidable if, in particular, they are not covered by contributions from third parties and taking into account the benefit recipient's potential savings, and if their amount deviates significantly from average needs. These conditions are met here.
2. Expenses incurred by a parent to exercise their right of access constitute an ongoing, not merely one-off, special, and unavoidable need (BSG, Judgment of 04.06.2014 – B 14 AS 30/13 R).
3. This constitutes an ongoing additional need because the circumstances differ from those of typical benefit recipients. Therefore, there is an additional need in relation to the "normal" standard allowance. This applies regardless of the fact that the standard allowance includes a portion for travel expenses. This is because travel expenses for exercising visitation rights relate to a special situation compared to usual everyday journeys (LSG NRW, Judgment of March 31, 2013 – L 7 AS 1911/12).
4. The fact that only a relatively short distance of 7.90 km needs to be covered does not imply that no additional need arises, especially if the two small children are under no circumstances able to cover this distance independently.
5. The applicant's additional needs are also considerable. The right of access costs the applicant €54.77 per month. A general de minimis threshold of 10% cannot be derived from the law (cf. Federal Social Court, judgment of May 26, 2011 – B 14 AS 146/10 R).
2.3 – Social Court Detmold, judgment of 04.09.2014 – S 18 AS 433/13 – legally binding – The appeal is admitted.
Regarding the question of whether a separate revocation decision is required in the case of a reduction under Section 31 of the German Social Code, Book II (here answered in the negative)
In addition to the determination pursuant to Section 31b Paragraph 1 SGB II, a separate cancellation notice pursuant to Section 48 SGB X is not required.
Principle (Editor):
A reduction notice, which establishes a breach of duty within the meaning of Section 31 of the German Social Code, Book II (SGB II), renders a previously issued benefit award notice for the period of the reduction ineffective to the extent of the reduction (see Bavarian State Social Court, judgments of June 18, 2014, L 16 AS 297/13 and of January 30, 2014, L 7 AS 85/13; Detmold Social Court, judgment of October 17, 2013, S 18 AS 1095/12; Trier Social Court, decision of December 14, 2011, S 4 AS 449/11 ER; Lauterbach in: Gagel, SGB II/SGB III, Section 31b, marginal note 2; contra: Lower Saxony-Bremen State Social Court, decision of February 10, 2014, L 7 AS 1058/13). B; SG Dortmund, decisions of 13 June 2014, S 32 AS 1173/14 ER and of 26 May 2014, S 35 AS 1758/14 ER; Eicher, SGB II, 3rd ed. 2013, § 31b para. 7; regarding the old legal situation, BSG, judgment of 17 December 2009, B 4 AS 30/09 R).
Legal tip:
The Federal Social Court (BSG) has now explicitly clarified that a formal amendment decision pursuant to Section 48 of the German Social Code, Book X (SGB X) is required.
If the "entitlement to payment" of a granted benefit is reduced by operation of law at a specific point in time, this does not mean that the underlying grant itself could partially lose its regulatory effect without express (partial) revocation, contrary to Section 48 Paragraph 1 Sentence 2 of the German Social Code, Book X (BSG, Judgment of April 29, 2015 – B 14 AS 19/14 R; Sonnhoff in jurisPK-SGB II 4th edition, Section 31b SGB II, marginal note 14.1).
2.4 – Social Court Berlin, decision of 04.01.2015 – S 128 AS 25271/15 ER
Italian citizens are to be granted benefits to secure their livelihood by way of preliminary legal protection.
There is also a ground for an order regarding benefits for accommodation and heating, without the need for an imminent threat of eviction (cf. generally LSG Berlin-Brandenburg, decision of July 22, 2014, L 10 AS 1393/14 B ER; SG Berlin, decision of January 5, 2015, S 205 AS 27758/14 ER; LSG NRW, decision of March 25, 2015, L 6 AS 419/15 B ER, abandoning its own earlier case law).
Principle (Juris)
1. An employable Union citizen who is excluded from receiving benefits under the German Social Code, Book II (SGB II) pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II is not, in principle, entitled to benefits as an employable person within the meaning of Section 21 Sentence 1 SGB II.
2. In a case where Article 1 of the EFA does not already preclude the exclusion of benefits under Section 23 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII), there is an entitlement to subsistence-level benefits – according to a constitutionally compliant interpretation in light of the guarantee of a dignified minimum standard of living under Article 1 Paragraph 1 of the German Basic Law (GG) and the social state principle of Article 20 Paragraph 1 of the German Basic Law (GG) – pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) (following the Federal Social Court (BSG) judgments of December 3, 2015, B 4 AS 59/13 R and 44/15 R).
Source: socialcourtsability.de
Note:
a. A. Social Court Berlin, judgment of 11.12.2015 – S 149 AS 7191/13 – No social benefits for EU citizens seeking work – Social Court Berlin contradicts the Federal Social Court.
2.5 – Social Court Berlin, decision of 29.12.2015 – S 37 AS 26006/15 ER
The obligation of the job center, by way of preliminary legal protection, to grant the applicant an interest-free loan based on several loans by way of a direct payment to the electricity supplier (affirmed here).
Section 42a of the German Social Code, Book II (SGB II) must be interpreted in a manner consistent with the constitution, such that loans pursuant to Sections 24 or 22 of the SGB II may only be offset against a maximum of 10% of the standard benefit rate (Social Court Berlin, judgment of March 17, 2015 – S 173 AS 23394/14; Higher Social Court Berlin-Brandenburg, judgment of July 29, 2015 – L 32 AS 1688/15 B ER; see also Higher Social Court Berlin-Brandenburg, judgment of July 31, 2015 – L 25 AS 1911/14 B PKH).
An objection to a repayment provision in the loan notice has suspensive effect, since Section 39 of the German Social Code, Book II (SGB II) does not apply to set-offs (regarding the suspensive effect, see Social Court Leipzig of 30 May 2014 – S 17 AS 1911/14 ER; Higher Social Court Saxony-Anhalt of 27 December 2011 – L 5 AS 473/11 B ER).
Guiding principle (Editor)
1. If the affected person's self-help options have been exhausted, the job center can only refuse to grant a loan to restore supply in atypical cases (e.g., repeated willful indebtedness) in the event of an energy disconnection (here, in the negative).
2. The applicant may only be referred to an urgent application at the civil court if there are indications of a procedurally flawed energy disconnection.
3. After a complete power cut, as in this case, referring to a change of energy supplier is misleading, and referring to Section 14 Paragraph 4 of the Electricity Network Access Ordinance is misleading (but see LSG NRW of 1 October 2015 – L 2 AS 1522/15 B ER).
4. Section 14(4) of the Electricity Network Access Ordinance (StromnetzzugangsVO) only regulates the conditions for a supplier change in an uninterrupted supply relationship and serves a regulatory function under competition law. If, as in this case, the energy supply has been lawfully interrupted by the network operator at the request of the energy supplier, the network operator is only obligated to reconnect the supply in accordance with Section 24(5) of the Network Access Ordinance (NAV) if all costs associated with restoring the supply are compensated. A mere change of supplier is therefore insufficient.
Source: socialcourtsability.de
3. Decisions of the social courts on asylum law
3.1 – Social Court Landshut, Judgment of 24 November 2015 – S 11 AY 11/14
No reimbursement of costs for outpatient psychotherapy for the Nigerian applicant at the counselling and treatment centre for refugees and victims of torture pursuant to Sections 4 para. 1 sentence 1 and 6 para. 1 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
From an equality law perspective, it is not objectionable if the legislator has refrained from fully equating those entitled to benefits under Section 1 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) with recipients of social assistance, especially since the benefits of statutory health insurance go far beyond what is required by human dignity.
Principle (Editor)
1. The result thus obtained is also constitutionally sound (cf. Federal Administrative Court, decision of September 29, 1998 – 5 B 82.97, para. 6; contra Frerichs, in: Schlegel/Voelzke, jurisPK-SGB XII, as of 11/15, § 4 AsylbLG para. 24 and § 6 AsylbLG para. 15 ff., 38 and 62 ff. with further references; cf. also Kaltenborn, NZS 2015, 161 ff. with further references).
2. Insofar as legal literature (Frerichs, loc. cit., § AsylbLG para. 24 with further references; Deibel, ZFSH/SGB 2012, 582) advocates, following the decision of the Federal Constitutional Court of July 18, 2012 (Case Nos.: 1 BvL 10/10, 1 BvL 2/11), a constitutionally compliant interpretation of Section 4 para. 1 AsylbLG or Section 6 AsylbLG in the sense of a far-reaching alignment of the level of benefits in case of illness with the law of statutory health insurance under the German Social Code, Book V (SGB V), at least in cases where, due to the factual circumstances, it can no longer be assumed that the foreigner has only a short stay – which is to be assumed after an uninterrupted stay of two years – the adjudicating chamber does not follow this view.
Source: socialcourtsability.de
4. Hartz IV: Family insurance will cease from 1 January 2016 – experts warn of pitfalls
Here: sozialberatung-kiel.de
Also:
End of family health
insurance coverage: New special regulations for young recipients of Hartz IV benefits. Experts warn of pitfalls.
Social law expert Harald Thomé sees even more pitfalls. "If the job center cuts off a family's benefits for one or more months due to an overpayment, the health insurance company demands a contribution for each family member for that period," he criticized in an interview with junge Welt. For a couple with two children over 15, this would amount to four times €165, assuming the minimum contribution was applied for. He sees another problem in the rising supplementary contributions. If these exceed the average – which, according to the National Association of Statutory Health Insurance Funds (GKV-Spitzenverband), was 0.83 percent in 2015 – the Federal Employment Agency (BA) does not cover the additional costs. If those affected do not want to divert the money from their standard benefit rate, they would have to look for a new, cheaper health insurance provider. "The end of family insurance means more paperwork, more bureaucracy, and further chaos for Hartz IV recipients," Thomé criticized in an interview with junge Welt
5. Back payment after termination of employment as current income – Note by Dr. Thomas Harks on BSG ruling of April 24, 2015
Comment on:
Federal Social Court (BSG), 4th Senate, Judgment of April 24, 2015 – B 4 AS 32/14 R – dejure.org/2015,8304
Author: Dr. Thomas Harks, Ministerialrat (Senior Ministerial Officer)
Legal Norms: Section 144 of the Social Courts Act (SGG), Section 11 of Book II of the Social Code (SGB II)
Citation suggestion: Harks, jurisPR-SozR 1/2016 Note 1
Source: juris – tinyurl.com
Back payment after termination of employment as current income
Guiding principle:
For an income to be classified as current income to be taken into account in the month of receipt, it is sufficient if it would have been payable regularly according to the legal basis on which it is based, even if it is actually only paid in a total amount after the termination of the legal relationship.
6. Stuttgart Regional Court, decision of November 20, 2015 (Case No.: 1 Qs56/15):
Principle by Dr. Manfred Hammel:
On the acceptability of setting a daily fine of EUR 15,- pursuant to Section 40 of the German Criminal Code (StGB) for an offender living on supplementary unemployment benefit II (Alg II), if, in accordance with Section 42 of the German Criminal Code (StGB), an installment payment of EUR 50,- per month for a period of nine months (for a total sentence of EUR 450,-) is to be granted.
Only with this payment relief does this needy offender retain from his standard allowance available as cash according to § 20 SGB II (less the maintenance payments he himself has to make) what is essential for his necessary subsistence.
7. SG Mainz: Motor vehicle assistance for people of short stature
Press release 9/2015 of the Mainz Social Court
www2.mjv.rlp.de
Motor vehicle assistance for people of short stature:
People of short stature may be entitled to motor vehicle assistance if they require a car to travel between their home and workplace. The Social Court of Mainz has ruled that it is not necessary for the disability to be the sole cause of the need for a car (Judgment of November 19, 2015 – S 1 R 701/13). The legal causal link is not negated simply because other factors – in this case, poor public transport connections – necessitate the use of a car. Whether a non-disabled person would also require a car to reach their workplace in the given situation is therefore not a decisive criterion. This follows, among other things, from an interpretation of the law that takes into account the inclusion of people with disabilities as defined by the UN Convention on the Rights of Persons with Disabilities. The Convention must also be considered when exercising the discretion granted to the benefit provider in such cases. Therefore, the defendant pension insurance company must grant the plaintiff a subsidy for the purchase of a new car and the corresponding conversion to be suitable for disabled persons.
8. SG Berlin: Widow's pension is also forfeited upon remarriage in California
SG Berlin, Press Release of January 8, 2016
www.berlin.de
Social Law in Everyday Life: 84-year-old must repay €150,000 widow's pension because she concealed her marriage – Widow's pension also forfeited upon remarriage in California
Berlin Social Court, judgment of December 11, 2015 (S 105 R 6718/14): Upon remarriage, the entitlement to a widow's pension ceases. This also applies to a marriage performed in the USA. By failing to notify the pension insurance provider of her remarriage, the plaintiff at least grossly negligently breached her duty to cooperate. She must therefore repay the widow's pension that was wrongly paid for almost 15 years.
The judgment is not yet legally binding. The plaintiff can appeal it to the Berlin-Brandenburg State Social Court in Potsdam.
9. Should I open a savings account for my grandson?
A savings account for the grandchild? Yes! But if the child's parents are dependent on unemployment benefit II, the grandmother should remain the account holder and simply name her grandchild as the beneficiary.
Source: www.volksstimme.de
Legal tip:
When assessing eligibility for assistance (§ 9 SGB II) in cases of existing savings, the focus must be on the person's right of disposal. In the case of savings accounts, the person in need of assistance is not bound by the apparent legal status of account ownership (see, e.g., Social Court Karlsruhe, Judgment of October 16, 2014 – S 13 AS 735/14; Social Court Gießen, Judgment of July 15, 2014 – S 22 AS 341/12; Higher Social Court Lower Saxony-Bremen, Judgment of April 23, 2012, L 9 AS 695/08; and Higher Social Court Hamburg, Judgment of August 25, 2011 – L 5 AS 33/08).
Author of the legal news ticker: Willi 2 from Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
