1. Decisions of the Federal Social Court of February 17, 2016 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of February 17, 2016 – B 4 AS 13/15 R and B 4 AS 12/15 R
Unemployment benefit II - Accommodation and heating - Increase in the appropriate expenses for accommodation and heating after an unnecessary move - Capping the benefits to the appropriate expenses to be borne until then only if there is an appropriately determined adequacy limit - Dynamization
KdU limitation after an unnecessary move must be made dynamic.
Guiding principle (based on BSG, judgment of April 29, 2015, B 14 AS 6/14 R)
1. A cap on the benefits for accommodation and heating after an unnecessary move to the reasonable expenses to be borne up to that point is only permitted if applicable There are determined appropriateness limits for accommodation and heating costs.
2. If the aforementioned requirement is to be answered in the affirmative, the future amount of benefits for accommodation and heating is not statically limited to the expenses at the time of moving out of the previously occupied apartment. Rather, a dynamization must take place taking into account the changes in the adequacy limit since the comparison date. Since they were determined according to a coherent concept, these changes are a benchmark for depicting the real dynamics on the rental housing market in the comparison area.
Source: juris.bundessocialgericht.de
1.2 – BSG, judgment of February 17, 2016 – B 4 AS 2/15 R
On the question of whether children of parents who live separately have their own right to benefits for accommodation and heating during their stay in the apartment of a parent who only has access rights (here, negative).
If the parent entitled to access has a need for additional living space due to the exercise of access rights, this may have to be taken into account in the context of the specific appropriateness of the accommodation and heating expenses in accordance with Section 22 Paragraph 1 Sentence 1 in conjunction with S 3 SGB II.
Note to the court:
1. A housing need to be recognized within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II only exists in relation to the center of life. The center of a child's life is in the home of only one parent if the child spends most of his time with that one parent. Dividing the housing requirements depending on the extent of the stay with one or the other parent is not an option.
2. If there is a need for additional living space on the part of the parent entitled to access due to the exercise of access rights, this may be taken into account within the scope of the specific appropriateness of the accommodation and heating expenses in accordance with Section 22 Paragraph 1 Sentence 1 in conjunction with Sentence 3 SGB II.
Source: juris.bundessocialgericht.de
Note:
See BAY LSG, decision of January 25, 2016 - L 7 AS 914/15 B ER - It is noted that the SG left it open whether the additional accommodation requirement is to be assigned to the parent or the children (BSG, judgment dated June 12, 2013, B 14 AS 50/12 R, paragraph 19).
Since the higher need for an apartment is ongoing, there is much to be said for granting a higher need to the parent with access rights “according to the specifics of the individual case” in accordance with Section 22 Paragraph 1 Sentence 3 SGB II instead of to the children who are only present occasionally. The regulation in Section 22b Paragraph 3 No. 2 SGB II also supports this assignment.
1.3 – BSG, judgment of February 17, 2016 – B 4 AS 17/15 R
Basic security for job seekers - determination of income for several businesses run by a basic security recipient - compensation for losses
No offsetting of income + losses from 2 commercial businesses for the SGBII-EK determination.
Guiding principle (editor)
1. When calculating benefits to secure a living in accordance with SGB 2, offsetting profit and loss from two different businesses is not permitted.
2. In SGB II, so-called horizontal loss compensation is not permitted, i.e. the balancing of income and expenses - which are to be used as the basis for the income calculation - within one type of income.
3. Likewise, a requirement for horizontal loss compensation cannot be derived from Section 5 Alg II-V.
Source: juris.bundessocialgericht.de
Note:
Likewise LSG Berlin-Brandenburg, judgment of February 26, 2014 - L 18 AS 2232/11; SG Stade, court decision dated October 2, 2014 – S 32 AS 289/14; Implementation instructions from the BA §§ 11-11b SGBII (1 1.34), for this Dresden Social Court, judgment of February 14, 2014 - S 21 AS 6348/10 -, each with mwN; Duisburg Social Court, judgment of April 28, 2014 - S 49 AS 617/10 - appeal pending LSG NRW under the case number L 2 AS 1006/14).
2. Decisions of the Federal Social Court of December 17, 2015 on social assistance (SGB XII)
2.1 – BSG, judgment of December 17, 2015 – B 8 SO 10/14 R
Social assistance - basic security in old age and in cases of incapacity - accommodation and heating - adult child in need of help in the rented apartment or in the parents' household - non-existence of an emergency group - lack of legal obligation to pay accommodation costs through a rental agreement or sublease agreement - de facto contribution to the accommodation costs
Accommodation and heating services in accordance with SGB
Guiding principle (editor)
1. The costs that can be taken into account as actual expenses in the normative sense also include the costs that the beneficiary actually incurs through the use of the apartment and that are actually (partly) borne by him (cf. SGB II: BSG, Judgment of October 6, 2011 - B 14 AS 66/11 R on costs when using an apartment rented by parents and BSG judgment of February 24, 2011 - B 14 AS 61/10 R on costs when using a house property).
2. In this respect, it is sufficient that the affected residents of the accommodation actually agree, without this necessarily giving rise to a legal obligation. It is solely up to the judge to assess in each individual case whether there is a serious expectation of the beneficiary to contribute to the costs of accommodation and heating.
Source: juris.bundessocialgericht.de
2.2 – BSG, judgment of December 17, 2015 – B 8 SO 24/14 R
Social law administrative procedure - social assistance - basic security in old age and in the event of reduced earning capacity - non-application of Section 116a SGB
Guiding principle (editor)
Non-application of Section 116a SGB 12 or the expiry period of Section 44 Paragraph 4 SGB 10, which has been reduced to 1 year, to review procedures initiated before April 1, 2011.
Source: juris.bundessocialgericht.de
3. Decisions of the state social courts on basic security for job seekers (SGB II)
3.1 - Saxon LSG, decision of February 25, 2013 - L 2 AS 141/13 B ER, unpublished
Unemployment benefit II – accommodation and heating – one-off costs for heating material (heating oil) – repayment payments b. Home ownership (negative repayment installments)
Entitlement to “Hartz IV” due to one-off heating costs.
There is no legal basis for taking fictitious savings into account over the course of the year.
If no ongoing benefits are received due to the income earned, the need for assistance must be determined - solely - at the time the heating cost claim is due
Guiding principle (editor)
1. According to consistent supreme court case law, the costs of accommodation and heating are to be determined on a monthly basis, “although to examine the appropriateness of the use of private homes and condominiums, the costs incurred in the calendar year must be taken into account, because above all the operating costs for private homes (e.g. property taxes, insurance contributions) are not due monthly, but rather annually, semi-annually or quarterly). Despite a conceivable administrative simplification, there is no legal basis for calculating an average amount, which is then used as the basis for the demand and performance calculation in the individual months, for example in order to spread the costs of heating oil for a one-time refueling over the entire year. Furthermore, it should be noted that the potentially significant financial requirements due to refueling with heating oil arise precisely when heating oil is purchased” (BSG, judgment of November 29, 2012, B 14 AS 36/12 R).
2. There is no legal basis for taking fictitious savings into account over the course of the year.
3. The consideration of an average burden and offsetting with an average or monthly determined income in excess leads, as in the present case, to the necessary funds not being available or no longer available at the time of need. The applicants, who are obliged under contract law to make repayment installments of €242.00 per month, can hardly be accused of having wasted their resources.
Legal tip:
The same result: SG Nordhausen, judgment of.
11/10/2015 - S 13 AS 1351/14 - Appeal pending at the Thuringian LSG under the ref.: L 9 AS 1668/15 If no ongoing benefits are received due to income earned, the need for help must be determined - solely - at the time when the heating cost claim is due – There is no legal obligation to first build up savings before purchasing the heating oil and then use them.
Sa comment from Harald Thomé on SG Dresden, judgment of February 16, 2015 - S 48 AS 6069/12, published in the Tacheles case law ticker week 09/2015 :
The law says that KdU and heating in the actual amount, which means that in the month in which KdU and heating are actually due or actually incurred, these must be taken into account as requirements. Here, the SG Dresden is trying to develop a variant that is favorable for the service providers and municipalities - at the expense of those affected and contrary to the jurisprudence of the BSG - and is not covered by the law.
Against: SG Dresden v. February 16, 2015 – S 48 AS 6069/12 and LSG Baden-Württemberg v. April 24, 2009 – L 12 AS 4195/08; SG Dresden, decision of. December 6, 2012 – S 48 AS 7673/12 ER, unpublished; cf. also the commentary on § 35 SGB XII by Nguyen in: Schlegel/Voelzke, jurisPK-SGB XII, 2nd edition 2014, § 35 SGB
3.2 – Rhineland-Palatinate State Social Court, decision of February 11, 2016 – L 3 AS 668/15 B ER
Neither ALG II nor social assistance benefits according to SGB 21 Sentence 1 and Section 23 Paragraph 3 Sentence 1 SGB XII.
Guiding principle (court)
1. Employed Union citizens who are excluded from benefits under SGB II according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II are generally not entitled to benefits under SGB XII (Section 21 Sentence 1 and Section 23 Paragraph 3 S 1 SGB XII.
2. An entitlement to social assistance as a discretionary benefit in accordance with Section 23 Paragraph 1 Sentence 3 SGB Exceptional cases may be considered. A stay in the federal territory for more than six months does not generally justify a reduction in discretion to zero (deviation from BSG judgment of December 3, 2015 - B 4 AS 44/15 R, juris).
3. The exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II or Section 23 Paragraph 3 Sentence 1 SGB XII is not unconstitutional.
Source: www2.mjv.rlp.de
Legal tip: a. A. LSG BB, decision v. 01/15/2016 – L 28 AS 3053/15 B ER
3.3 – Thuringian State Social Court, judgment of November 25, 2015 – L 4 AS 1010/13 – legally binding
It must be clearly evident that the administrative act only has legal effect for the transitional period until the final decision, that the benefits awarded are only granted provisionally in anticipation of the final approval that will only be issued in the future and that they should be counted towards this and, if necessary, reimbursed (not visible here).
For the applicant as the recipient of the decision, taking into account the overall circumstances - in particular its design - it was not clear with sufficient clarity that a final decision could still be outstanding (see also Federal Social Court, judgment of November 29, 2012 - B 14 AS on this requirement 6/12 R, paragraph 19).
Guiding principle (Juris)
1. Based on the principle of legality of administration (Art. 20 III GG), an administrative act serves to implement the abstract general legal regulations in the individual case. As a result, any ambiguity is to the detriment of the authority. The decree sentence is the epitome of the regulation of the administrative act. As a result, clear and unambiguous explanations are required as to why and in relation to what content of the benefit approval a provisional regulation is made. This applies in particular in view of the fact that a provisional provision can be removed as a legal basis for benefits granted without the restrictions that the regular withdrawal rules - in particular § 45 SGB X and § 330 SGB III - regularly establish.
2. Since the authorization bases of Section 328 Paragraph 3 SGB III and Sections 45, 50 SGB II have completely different prerequisites for the offense and differ in particular in that for Section 45 SGB are irrelevant, there is no obligation within the scope of the official investigation obligation to make up for the defendant's failure to investigate the offense in accordance with Section 45 SGB X. The defendant is already obliged at the previous stage of the proceedings to determine and accordingly establish the prerequisites for a standard on which he bases his administrative decision. In the context of an action for annulment of the present type, it is the court's task to review the decision of the administrative authority, but not to create the conditions for the legality of the contested administrative act (connection to the Federal Social Court, judgment of June 25, 2015 - B 14 AS 30/ 14 R, paragraphs 20, 25, juris)
Source: socialcourtsability.de
3.4 – State Social Court of Saxony-Anhalt, decision of. January 21, 2016 – L 2 AS 624/15 B ER – legally binding
Portuguese mother of 2 children is entitled to ALG II or social benefit for the children.
Together with the child in training, the parent with custody has a right of residence derived from this, even if the parent's own right of residence based on the freedom of movement regulations no longer exists (see BSG, deadline report of December 3, 2015 on B 4 AS 43/ 15 R).
Applicant 3) has a right of residence in accordance with Section 3 Paragraph 1 Sentence 1 FreizügG/EU because he accompanies his mother.
Guiding principle (Juris)
1. According to Section 3 Paragraph 4 FreizügG/EU, children in training have a right of residence together with the parent with custody.
2. This also applies if the parent with custody no longer has their own right of residence to look for work because this parent has already been unemployed for more than six months (see ECJ, judgment of February 23, 2010, C-480/08 Texeira). In this case, the parent's right of residence does not arise solely from the search for work, so that the approval of benefits under SGB II is not excluded according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II
Source: socialcourtsability.de
4. Decisions of the social courts on basic security for job seekers (SGB II)
4.1 – Nordhausen Social Court, judgment of November 10, 2015 – S 13 AS 1351/14 – legally binding – the appeal is admitted. The jump revision is permitted.
Unemployment benefit II - accommodation and heating - one-off costs for heating material (heating oil) - reimbursement of travel costs and mileage allowance from the employer is creditable income - to take into account a tax refund, which was received after the application was submitted if the non-benefit recipients become in need of fuel due to the one-off delivery of fuel (here split over 6 months)
Claim to “Hartz IV” due to one-off heating costs – creating reserves for fuel deliveries is unreasonable
The job center's approach of allocating the costs of procuring heating oil over a period of twelve months in an intermediate step in order to check whether there is a need for help in the (twelve-month) consumption period based on these monthly divided costs is unlawful. There is no legal basis for this.
If no ongoing benefits are received due to income earned, the need for assistance must be determined - solely - at the time when the heating cost claim is due (contrary to SG Dresden of February 16, 2015 - S 48 AS 6069/12 and LSG Baden-Württemberg of April 24, 2009 - L 12 AS 4195/08).
Guiding Principle (Editor)
1. Accommodation costs must be paid as they are due.
2. The reason for this strict allocation according to due date is that any significant financial need - as is the case here - must be borne by the person in need of help when the costs are actually due. There is no legal basis for the formation of monthly KdU flat rates or “average KdU”.
3. Likewise, the applicants cannot be referred to the creation of savings because the costs of purchasing heating oil were already due in full upon purchase, but the monthly distribution of the costs (over a future period) is only to be carried out in the future - ie Savings that have not yet been formed and therefore do not yet exist are implied. However, current needs cannot be met with such savings that have yet to be made.
4. There is also no legal obligation to first build up savings before purchasing the heating oil and then use them. If a person in need of help is referred to such savings that were made in the past, this is inadmissible. A person who does not receive state welfare benefits is generally free to use their income.
5. In particular, this does not arise from Section 2 Paragraph 2 Sentence 1 SGB II and Section 3 Paragraph 3 SGB II. Both legal provisions are fundamental norms that only apply via other regulations, namely those on the use of income and Assets or other performance-reducing regulations must be specified. They therefore do not establish any facts of their own that could be used to exclude benefits (BSG of September 27, 2011 - B 4 AS 202/10 R).
6. If the person in need of assistance has not created a financial reserve, he cannot be referred to the use of one. The attribution of fictitious assets is inadmissible (see also LSG Berlin-Brandenburg of December 29, 2009 - L 14 AS 1865/09 B ER). The refusal of SGB II benefits based on the assumption that the person in need of help did not become needy at all or only partially due to a certain economic behavior is not compatible with Articles 1, 20 GG (BSG of August 19, 2015 - B 14 AS 43 /14 R).
7. The income tax refund must be divided equally over a period of six months in accordance with Section 11 Paragraph 3 Sentence 3 SGB II. In principle, everything that someone receives in terms of value after submitting the application is to be taken into account as income; assets are everything that they already had before submitting the application (BSG dated February 14, 2013 - B 14 AS 51/12 R). This turning point is not subject to subsequent withdrawal of the application or limitation of the application to a single month of benefits - as is the case with the plaintiffs (BSG of April 24, 2015 - B 4 AS 22/14 R).
8. The purpose of Section 11 Paragraph 3 Sentence 3 SGB II is to counteract such a premature conversion of income into assets and to continue to take the one-off income into account as a “ready means” when calculating income by dividing it over a distribution period of six months . This must therefore also apply if, at the time the one-off income is received, there is no need for assistance due to the inflow of other income. In this case, there is no reason to privilege the one-off income (through an immediate inflow into the assets) and thus completely exclude it from being taken into account in the following months, even though the need for help has not been completely overcome in the following months (cf. BSG of September 10th. 2013 - B 4 AS 89/12 R, juris, Rn. 24 on the question of interruption of the distribution period if the need for help was previously interrupted by another intake before the start of the distribution period of the one-off intake).
Appeal pending at the Thuringian LSG under the ref.: L 9 AS 1668/15
Legal tip:
Same opinion: Saxon.
LSG, decision of February 25, 2013 - L 2 AS 141/13 B ER, unpublished - Claim to “Hartz IV” due to one-off heating costs - There is no legal basis for taking into account fictitious savings over the course of the year. See unemployment project TuWas (ed.) - Udo Geiger - Accommodation and heating costs according to SGB II - The handbook, 3rd edition, as of May 1, 2015, p. 179.):
Need for help simply because of heating costs
If the homeowners earn enough income to cover ongoing living and housing costs, but there is not enough money for heating material (e.g. to fill the tank with heating oil), this arises in the month in which the heating material must be delivered , need for help with a right to reimbursement of costs in accordance with Section 22 SGB II.
Against: SG Dresden v. February 16, 2015 – S 48 AS 6069/12 and LSG Baden-Württemberg v. April 24, 2009 – L 12 AS 4195/08; SG Dresden, decision of. December 6, 2012 – S 48 AS 7673/12 ER, unpublished; cf. also the commentary on § 35 SGB XII by Nguyen in: Schlegel/Voelzke, jurisPK-SGB XII, 2nd edition 2014, § 35 SGB
4.2 - SG Berlin, judgment of January 20, 2016 - S 100 AS 9940/15 - Appeal is permitted
No formation of an average income if income fluctuates.
Attorney Kay Füßlein, Berlin:
1. When finally determining the benefit entitlement, the actual earned income must be taken into account.
2. For systematic reasons, Section 2 Paragraph 3 Sentence 3 ALG II-VO is to be interpreted in such a way that the average income can only be used as a basis if the provisional approval deviates from the final determination of less than €20.
Note from the court:
When finally determining the entitlement to benefits, no average value of the actual earned income can be used as a basis (SG Berlin, judgment of March 23, 2015 - S 197 AS 355/12; SG Leipzig, judgment of February 5, 2015 - S 18 AS 2159/11; SG Nordhausen, judgment of September 12, 2013 - S 22 AS 769 /11).
The contrary view is sometimes represented in case law (v I. State Social Court for the State of North Rhine-Westphalia, judgment of October 31, 2012 - L 12 AS 691/11; State Social Court of Saxony-Anhalt, judgment of January 30, 2013 - L 5 AS 487 /10; SG Dortmund, judgment of July 13, 2015 - S 31 AS 3733/13; SG Halle (Saale), judgment of December 3, 2014 - S 24 AS 846/13 is not shared by the chamber.
Source: www.ra-fuesslein.de
Current legal tip:
SG Altenburg, judgment of November 25th, 2015 - S 24 AS 145/15 - Appeal pending at the Thuringian LSG under the ref.: L 7 AS 82/16
No average income when finally determined.
Published by Attorney Corinna Unger, Gera, printed in the information letter SGB II short messages for practitioners 01/2016 and in the Tacheles case law ticker week 04/2016 .
4.3 – SG Mainz, judgment by. November 17, 2015 – S 14 AS 956/14
Basic security for job seekers - priority benefits - request to apply for early old age pension - vagueness of the letter from the basic security provider - request from the job center no administrative act - specificity - lack of hearing - parent's carer - atypical circumstance
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).
Guiding principle (editor)
1. A request from the job center does not contain a regulation with the quality of an administrative act. A decision is indefinite if an authority addresses a citizen with a request. A request is a wish addressed to someone. It can, but does not have to be fulfilled. Requests and wishes are alien to sovereign regulation.
2. A request is not a request within the meaning of Section 12a SGB II.
3. A case of hardship, which makes claiming the early old age pension appear unreasonable due to exceptional circumstances, may exist for the applicant as the carer of her parents for two people in need of care according to care level II.
4. In this case, the federal legislature consciously enables the receipt of SGB II benefits without the obligation to take up work (Section 10 Paragraph 1 No. 3 SGB II) - here implemented by the job center through an integration agreement - and honors this situation with free accident insurance, the possibility for unemployment insurance and the payment of pension contributions through the nursing care insurance of the person being cared for (§ 44 SGB X). The pension expectation increases with every month.
4.4 - Magdeburg Social Court, decision of May 27, 2015 - S 14 AS 1141/15 ER - legally binding
Unemployment benefit II - accommodation and heating - increase in accommodation costs due to unnecessary relocation - duration of the cap on previous accommodation costs - constitutional interpretation
Within the scope of § 22 Para. 1 Sentence 2 SGB II, a dynamization must take place (LSG Saxony-Anhalt from November 20, 2014, L 4 AS 777/13).
Limitation of SGB II benefits to previous expenses no longer applies after one year after an unnecessary move.
Guiding principle (Juris)
1. No excessive requirements may be placed on the concept of necessity according to Section 22 Paragraph 1 Sentence 2 SGB II due to the significant interference with the right to the granting of the socio-cultural subsistence minimum.
2. The restriction according to Section 22 Paragraph 1 Sentence 2 SGB II must be made more dynamic in order to avoid a permanent under-coverage of needs.
Source: socialcourtsability.de
Legal tip:
BSG, judgment of February 17, 2016 - B 4 AS 13/15 R and B 4 AS 12/15 R - KdU limitation after an unnecessary move must be made dynamic.
4.5 – Leipzig Social Court, judgment of January 19, 2016 – S 10 AS 3521/14 – The appeal is permitted.
Unemployment benefit II - accommodation and heating - adequacy test - one-person household in the district of North Saxony - lack of a coherent concept - creation of comparison areas - use of the housing benefit table
In particular to answer the question of whether and under what conditions a comparison area differentiation based on rent-determining factors meets the requirements of supreme court case law for a coherent concept
The job center does not have a coherent concept for determining the appropriate costs of accommodation.
Guiding principle (editor)
1. The local comparison area cannot only be determined during the specific appropriateness test in individual cases. In individual cases, with special personal concerns, it must be examined whether even tighter boundaries should be drawn within the comparison area in the interests of a homogeneous living and living area. The definition of the comparison area in the sense of a homogeneous living and living area must be carried out at the abstract, general level, otherwise it does not correspond to the fundamental requirements of a concept (SG Dresden, judgment of June 26, 2015 - S 14 AS 8400/12).
2. Disproportionately complex investigations for the creation of settlement areas do not have to be carried out by the court (cf. BSG, judgment of March 22, 2012, B 14 AS 16/11 R). It is the responsibility of the basic security providers to determine a coherent concept for their area of responsibility. This also includes creating the comparison area based on the legal requirements. If these legal requirements are expressly not observed and accordingly no investigations and considerations are made into the homogeneous housing and living situation in the area to be assessed and this is not revealed, or only with disproportionate effort from generally accessible sources, then this is not completely on the part of the Court to re-investigate (SG Dresden, judgment of June 26, 2015 - S 14 AS 8400/12).
3. For a one-person household, the maximum monthly amount for rent level III is EUR 330.00. After an appropriate increase of 10%, a gross rent of EUR 363.00 is still considered appropriate.
Legal tip:
a. Opinion on the comparison area: Leipzig Social Court, judgment of September 24, 2015 - S 25 AS 2228/14
In particular to answer the question of whether and under what conditions a comparison area differentiation based on rent-determining factors meets the requirements of supreme court case law for a coherent concept.
4.6 – Dortmund Social Court, decision v. 02/11/2016 – S 35 AS 5396/15 ER
Italian citizens are excluded from ALG II entitlement and are also not entitled to social assistance benefits.
Guiding principle (editor)
1. Employable foreigners who are subject to the exclusion of unemployment benefit II according to Section 7 Paragraph 1 Sentence 2 SGB II are not entitled to social assistance benefits according to Section 23 Paragraph 1 Sentence 3 SGB XII (contrary to BSG, judgment of December 3rd. 2015 – B 4 AS 44/15 R).
2. This from the perspective of the BSG in its judgments of December 3, 2015 (B 4 AS 59/13 R, B 4 AS 43/15 R, B 4 AS 44/15 R), December 16, 2015 (B 4 AS 15/ 14 R, B 14 AS 18/14 R, B 14 AS 33/14 R) and January 20, 2016 (B 14 AS 15/15 R, B 14 AS 35/15 R) the different result of the board follows from the wording and structure the § 21 SGB XII, the justification for the law as well as the systematic interplay between SGB II and SGB
Source: socialcourtsability.de
Legal tip:
Likewise LSG Rhineland-Palatinate, decision of February 11, 2016 - L 3 AS 668/15 B ER
a.
Opinion: 62nd Chamber of the SG Dortmund, decision of. February 11, 2016 - S 62 SO 43/16 ER - Employable EU foreigners who are subject to the exclusion of unemployment benefit II according to Section 7 Paragraph 1 Sentence 2 SGB II can, by way of interim legal protection, receive social assistance benefits according to Section 23 Paragraph 1 Sentence 3 Enforce SGB
4.7 – Dortmund Social Court, decision v. 02/11/2016 – S 62 SO 43/16 ER
Bulgarian citizens are granted assistance with subsistence in accordance with Chapter 3 of SGB XII in the form of the respective standard rate in interim legal protection.
Guiding principle (editor)
1. The applicant is excluded from receiving benefits according to SGB II in accordance with Section 7 Paragraph 1 Sentence 2 No. 2 SGB II. This results from a so-called “first law conclusion” (cf. BSG, judgment of December 3, 2015 - B 4 AS 44/15 R). This interpretation of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II is also in accordance with European law.
2. According to the case law of the BSG, the exclusion of benefits in SGB II opens the way to SGB XII, because § 21 SGB
Source: socialcourtsability.de
4.8 – Stade Social Court, judgment of February 1, 2016 – S 28 AS 386/11
To consider cash deposits as income - loan payment
Guiding Principle (Editor)
The amounts deposited in cash into the applicant's private checking accounts were available to the plaintiffs as income; They are not subject to any realistic obligation to repay loans.
Source: socialcourtsability.de
4.9 – Karlsruhe Social Court, judgment of February 10, 2016 – S 12 AS 715/15
Unemployment benefit II - subsidy for insurance contributions from private health and nursing care insurance - deductible for treatment costs agreed with the insurance company - no claim under Section 26 SGB II - no additional requirement in accordance with Section 21 Paragraph 6 SGB II - no claim under Section 73 SGB XII
There is no possibility of subsuming the deductible of EUR 1,700.00 per year to be borne by the applicant under Section 26 SGB II.
Costs of medical treatment that a recipient of unemployment benefit II has to pay for themselves due to their private health insurance with a deductible can be temporarily covered by the job center as additional hardship requirements (based on BSG, judgment of April 29, 2015, B 14 AS 8/14 R - but here negative)
Guiding principle (Juris)
1. The deductible for treatment costs agreed with the private health insurance company is not to be borne by the basic social security provider.
2. § 26 Para. 1 Sentence 1 No. 1 SGB II is not relevant according to its wording, since according to this only a subsidy for the insurance “contributions” is to be granted by the basic security provider.
3. According to the case law of the BSG (judgment of April 29, 2015 - B 14 AS 8/14 R - juris), an unavoidable additional need within the meaning of Section 21 Paragraph 6 SGB II only comes into consideration if appropriate advice has been given by the basic security provider with regard to the possibility of switching to the basic tariff.
4. § 73 sentence 1 SGB
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – SG Dortmund, judgment by. February 19, 2016 – S 62 SO 444/14
SG Dortmund: Court overturns rent cap for social assistance recipients in the Hochsauerland district - city of Brilon
Note from the court:
The court was critical of the calculation bases from the company Analysis and concepts for the upper limit for the appropriate accommodation costs for benefit recipients because the data was sometimes too general and too old.
Now the pensioner gets more money because the calculation must be based on the housing benefit law table instead of the upper limit of the Hochsauerland district.
Note:
The decision could also have an impact on other municipalities.
Sources: www.t-online.de
Sat:
SG Dortmund: No coherent concept for determining the needs for accommodation in the Hochsauerlandkreis: www.lokalkompass.de
5.2 - SG Leipzig, decision of November 16, 2015 - S 5 SO 66/15 ER and decision of June 9, 2015 - S 5 SO 38/15 ER
(hereinafter confirmed by the decision of the Saxon State Social Court of July 13, 2015):
Press release from 02/04/2016 – School support, sick observation or a “normal child’s life”?
The Leipzig Social Court had to decide in two urgent proceedings whether and under what legal framework sick children need to be accompanied in everyday school life.
Source: www.justiz.sachsen.de
6. Decisions of the state social courts on asylum law
6.1 - Thuringian State Social Court, judgment of October 21, 2015 - L 4 AS 1751/12 - legally binding
On the use of a pension due to increased needs in accordance with Section 843 of the German Civil Code (BGB) as income within the framework of the AsylbLG
Guiding principle (editor)
1. The payment described as a pension due to increased needs according to Section 843 BGB is not subject to Section 253 Paragraph 2 BGB and therefore also not to Section 7 Paragraph 5 AsylbLG a. F. or Section 7 Paragraph 2 No. 4 AsylbLG new version.
2. The pension is undoubtedly not one according to the BVG or BEG.
3. Privileging pensions is therefore only possible from the perspective of earmarked income. However, doubts must be raised with regard to the version of Section 7 Paragraph 2 AsylbLG valid from March 1, 2015.
4. If the use of the pension due to increased needs and the maintenance advance to cover the needs according to the AsylbLG already cover the needs, there is no need to go into detail about the inflow of interest from the compensation for pain and suffering, which is also income (cf. BSG, judgment of 22. August 2012 – B 14 AS 103/11 R).
Source: socialcourtsability.de
7. Decisions of the social courts on employment promotion law (SGB III)
7.1 – SG Speyer, judgment by February 17, 2016 – S 1 AL 63/15
No block on unemployment benefits after temporary employment
Guiding principle (editor)
When changing from a permanent to a fixed-term employment relationship, a blocking period does not occur following the fixed-term employment if the employee had a legitimate interest in terminating the permanent employment relationship (here the fixed-term employment relationship was significantly more attractive for the employee Working conditions such as the journey to work and thus the amount of travel costs were drastically reduced, which indirectly led to a not only slightly higher net wage.
Source: Press release from SG Speyer No. 1/2016 v. February 19, 2016: www2.mjv.rlp.de
8. Note on the Berlin Social Court, judgment of January 27, 2016 - S 82 AS 17604/14
No Hartz IV supplement for contact with ex-partner's child
The SG Berlin has decided that the job center is not obliged to pay a benefit recipient the costs of a larger apartment just because the ex-partner's child also regularly stays there.
Exercising the right to contact with a child can give rise to social rights claims. However, the prerequisite for this is the biological or at least legal parenthood of the benefit recipient. So-called social parents have no social rights, even if they are the child's caregiver and confidant. In exceptional cases, claims from the child themselves would only be considered, the social court continued.
further: The judgment is not yet legally binding. The plaintiffs can challenge it by appealing to the LSG Berlin-Brandenburg.
Source: Press release from SG Berlin v. February 16, 2016: www.berlin.de
9. Employment Agency – Unemployed: Are you insured for accidents during a mandatory job interview?
State Social Court of Baden-Württemberg, judgment of July 20, 2015 – L 1 U 5238/14
Anyone who receives a request from the employment agency to look for a job is legally insured against accidents. This also applies if the employment agency asks the unemployed person to go to a specific interview.
Guiding principle (Juris)
The request to apply to a potential employer in writing or by email also includes - with regard to insurance coverage in accordance with Section 2 Paragraph 1 No. 14a SGB VII - the personal interview with the employer.
Source: socialcourtsability.de
Sat:
Employment Agency – Unemployed: Are you insured against accidents during a mandatory job interview?
Anyone who receives a request from the employment agency to look for a job is legally insured against accidents. This also applies if the employment agency asks the unemployed person to go to a specific interview. But what about unemployed people who first apply after a placement suggestion from the employment agency and then arrange an interview themselves?
further: anwaltauskunft.de
10. Hartz IV rule set: Sample template for objection – German Paritätischer Wohlfahrtsverband – Gesamtverband e. v.
Press release from February 17, 2016
The level of standard requirements will be redetermined in a federal law when the results of a new nationwide income and consumption sample (EVS) are available. The applicable standard rates are still based on EVS data from 2008. A new EVS was collected on a regular basis in 2013. The BMAS has apparently had the evaluations of the results, which form the basis for a new determination of the standard requirements, for several months. At the end of November, however, a spokeswoman for the Federal Ministry of Labor and Social Affairs stated, according to the Süddeutscher Zeitung of November 30, 2015, that an adjustment of the standard rates based on the new EVS should not take place until January 1, 2017. If it turns out that the delayed implementation of the new determination of the standard rates is at the expense of Hartz IV recipients, a retroactive claim would be conceivable. However, this only applies if those affected object to current Hartz IV decisions.
The Paritätische has therefore formulated a model contradiction.
Sample contradiction:
You can download this sample objection as a Word file for individual use here.
Source: www.der-paritaetische.de
Comment from Harald Thomé on the DPWV's model contradiction:
The purpose of the Paritätischen action is, at best, to highlight a problem and illegal action. However, those affected should not hope to get money through the objection. What will happen afterwards: a court may find that the legislator's procedure was not entirely correct, but that he had no other option and that there is no claim for repayment.
It would have been nice if this had been made transparent by the initiators of the model objection.
The process is one of the many injustices in the Hartz IV system, but not one that will lead to retroactive corrections in favor of those affected.
Note dated February 22, 2016
11. The law amending the Twelfth Book of the Social Security Code and other regulations of December 21, 2015
Author: Jutta Siefert, Ri'inBSG
Source: juris – tinyurl.com
Author of the case law ticker: Willi 2 von Tacheles – alias Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
