1. Decisions of the Federal Social Court of 17 March 2016 on basic income support for job seekers (SGB II)
1.1 – Federal Social Court (BSG), decision of 17 March 2016 – B 4 AS 694/15 B – confirmation for Higher Social Court of North Rhine-Westphalia (LSG NRW), judgment of 9 November 2015 – L 19 AS 924/15
Back payments of social benefits (here: child benefit) are not to be spread over 6 months.
Guiding principle (Editor)
1. A back payment of child benefit is not to be distributed by the job center as a one-off income over six months in accordance with Section 11 Paragraph 3 of the German Social Code, Book II (SGB II), but rather as a current income in accordance with Section 11 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), and is only to be taken into account as reducing the need in the month of the capital inflow.
2. 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 (BSG, Judgment of 24.4.2015, B 4 AS 32/14 R).
2. Decisions of the Federal Social Court of 16 December 2015 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgments of 16.12.2015 – 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 EU citizens – social assistance in case of actual permanent residence
The 14th Senate concurs with the jurisprudence of the 4th Senate of 3 December 2015 (see meeting report no. 54/15 nos. 2-4).
Guiding principle (Editor):
A claim against the social welfare provider can be derived – subject to the prerequisites of the individual case still to be examined within the framework of Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII – from the fundamental right to a guarantee of a dignified minimum standard of living from Article 1 Paragraph 1 of the German Basic Law in conjunction with the social state principle of Article 20 Paragraph 1 of the German Basic Law (cf. Federal Constitutional Court of 9 February 2010 – 1 BvL 1/09 et al. – BVerfGE 125, 175-260).
Source: juris.bundessocialgericht.de
3. Decisions of the Federal Social Court of 20 April 2016 on social assistance (SGB XII)
3.1 – BSG, Judgment of 20 April 2016 – B 8 SO 5/15 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – reimbursement of travel expenses for visits to a sick parent – failure to submit an application – assistance in other life situations – emergence and coverage of the need before the social assistance provider becomes aware of it
Investigations without any basis in fact are unacceptable for the social welfare provider.
Note to the court:
1. The requirement of knowledge of the social assistance provider, enshrined in law and jurisprudence (§ 18 SGB XII), also applies to basic income support for the elderly and those with reduced earning capacity as a social assistance benefit under the German Social Code, Book XII (SGB XII).
2. In contrast, the application provided for in Section 41 of the German Social Code, Book XII (SGB XII), represents only a special form of obtaining information.
3. In cases of special needs, such as an individual need that unavoidably deviates from the standard rate (§ 27a para. 4 SGB XII), the social welfare agency must—regardless of the source—have sufficient knowledge of a potential need to initiate further investigations; conducting investigations without any basis is unreasonable. This applies equally to alternative claims for benefits in other life situations (§ 73 SGB XII).
Source: juris.bundessocialgericht.de
4. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
4.1 – State Social Court of Baden-Württemberg, Decision of 02.02.2016 – L 9 AS 2914/15 B
Principle (Juris)
1. Receipt of a pension within the meaning of Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), which excludes entitlement to benefits under the SGB II, also exists if the (foreign) pension is paid to a third party entitled to receive it with the knowledge and consent of the beneficiary.
2. Insofar as a claim for reimbursement exists pursuant to Sections 102 et seq. of the German Social Code, Book X (SGB X), the claim of the person entitled to the social benefit against the benefit provider obligated to provide the benefit – i.e., the party obligated to reimburse – is deemed to be fulfilled pursuant to Section 107 Paragraph 1 of the German Social Code, Book X (SGB X).
To the extent that the deemed fulfillment applies, it precludes the revocation or withdrawal of the benefit award by the benefit provider entitled to reimbursement under Sections 44 et seq. of the German Social Code, Book X (SGB X), and a reimbursement claim under Section 50 of the SGB X.
Source: sozialgerichtsbarkeit.de
Legal tip:
See also SG Augsburg, judgment of 18 November 2015 – S 8 AS 983/15
4.2 – Baden-Württemberg State Social Court, Judgment of 20 October 2015 – L 9 AS 320/13
Principle (Juris)
1. The “capping provision” of Section 22 Paragraph 1 Sentence 2 SGB II n. F. presupposes that abstract limits of appropriateness, correctly determined for the local comparison area, exist.
2. Regarding the reasonableness of cost reduction within the meaning of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II). Otherwise, a cap is not permissible (following the Federal Social Court's ruling of April 29, 2015 – B 14 AS 6/14 R).
Source: socialcourtsability.de
4.3 – Baden-Württemberg State Social Court, Judgment of 22 September 2015 – L 9 AS 5084/13
Section 37 paragraph 2 sentence 1 of the German Social Code, Book II (SGB II) does not require a new application if, during the ongoing application process, the need for assistance arises due to the consumption of assets (LSG NSB, judgment of 11.03.2008 – L 7 AS 143/07).
Section 12 paragraph 4 sentence 3 of the German Social Code, Book II (SGB II) is applicable in those cases in which changes in the financial circumstances occur in the period between – application and commencement of benefits for basic income support.
Section 12 Paragraph 4 of the German Social Code, Book II (SGB II) merely stipulates that the Job Center can rely on the existence of an asset or value at the time of application, as long as this value remains unchanged. If a change in the market value occurs due to sale, encumbrance, or other circumstances, this change must be taken into account, regardless of the reason for the change in assets (as in this case: Bavarian State Social Court, Judgment of July 23, 2015 – L 11 AS 681/14).
This applies even in cases of intentional and targeted creation of insolvency
Principle (Juris)
1. The use of one's own assets (here a terminated life insurance policy) pursuant to Section 12 of the German Social Code, Book II (SGB II) for debt repayment in the form of settling a debit account leads to their consumption (distinction from the consideration of income accrued to and credited to an account pursuant to Section 11 of the German Social Code, Book II (SGB II) within the framework of a current account agreement, see Federal Social Court (BSG) 29.04.2015 – B 14 AS 10/14 R).
2. Regarding the issuance of a preliminary ruling pursuant to Section 130 of the Social Court Act (SGG) (only) in the appeal proceedings.
Source: sozialgerichtsbarkeit.de
4.4 – Baden-Württemberg State Social Court, Judgment of 14 July 2015 – L 9 AS 609/15
Regarding the legality of an integration agreement (here denied) – The integration administrative act is also entirely unlawful and not only partially unlawful.
Principle (Juris)
1. An administrative act concerning integration that consists solely of requirements for the person concerned without any concrete reference to the goal of integration into work is unlawful (It merely requires, in accordance with general regulations, that the person communicate changes, submit sick leave certificates, report holidays and other absences, etc.).
2. An integration agreement may be dispensed with if the legal purpose of structuring and promoting the integration of the person concerned into the labor market cannot (currently) be achieved.
Source: socialcourtsability.de
4.5 – Lower Saxony-Bremen State Social Court, Judgment of 27 November 2015 – L 11 AS 941/13 – The appeal is admitted.
Basic income support for job seekers – consideration and calculation of income – deduction of insurance premiums for legally required motor vehicle liability insurance in addition to the insurance allowance – harmlessness of not being a policyholder
Deducting motor vehicle liability insurance premiums does not require policyholder status. The annual premium is allocated to the respective month
Principle (Juris):
The deduction of contributions for motor vehicle liability insurance from the income of the benefit recipient pursuant to Section 11 Paragraph 2 Sentence 1 No. 3 of the German Social Code, Book II (SGB II aF) (Section 11b Paragraph 1 Sentence 1 No. 3 SGB II nF) does not require that the benefit recipient be the policyholder of the motor vehicle liability insurance policy taken out for the relevant vehicle. It is sufficient that they are the registered keeper of the vehicle, i.e., that the vehicle in question is not merely temporarily entrusted to them for their own use, and that they actually bear all costs associated with the operation of the vehicle.
Source. socialjustice.de
Legal tip:
Similar to the ruling of the Social Court of Halle (Saale) of 13 October 2015 – S 7 AS 4841/12
4.6 – Lower Saxony-Bremen State Social Court, Judgment of 21 January 2016 – L 6 AS 1200/13
Principle (Juris)
1. Unemployment benefit II granted to a maintenance debtor is, as a socio-cultural subsistence minimum, also excluded from payment to maintenance creditors in the event of gainful employment.
2. A diversion is also not possible in the amount of the allowance that is to be deducted from the income to be considered when calculating benefits.
Source: sozialgerichtsbarkeit.de
4.7 – Lower Saxony-Bremen State Social Court, Judgment of 11 March 2016 – L 11 AS 1359/12
Legal Standards: Section 22 Paragraph 1 SGB II, Section 44 SGB X – Keywords: Multiple benefit periods in one decision, housing costs, costs for the operating electricity of the heating pump, limits of reasonableness in Göttingen
Guiding principle (Editor)
1. Costs for the maintenance of the heating system are to be allocated to the heating costs and not to the gross rent (cf. LSG NRW, decision of 30 March 2012 – L 19 AS 388/12 B).
2. In proceedings under Section 44 of the German Social Code, Book X (SGB X), separate review applications are necessary for each different grant notice. While the authority can combine several objections into a single objection decision, it cannot thereby definitively determine the number of legal proceedings in order to reduce its own cost risk.
3. The costs for the operating electricity of the heating pump are reimbursable (see also: Federal Social Court [BSG], judgment of July 7, 2011 – B 14 AS 51/10 R –) and are to be estimated at 5% of the fuel costs pursuant to Section 202 of the Social Courts Act (SGG) in conjunction with Section 287 Paragraph 2 of the Code of Civil Procedure (ZPO). It should be added that the Federal Social Court also points out that reference points for the estimate can be derived from the calculation methods commonly used in tenancy law jurisprudence, where an estimated share of the fuel costs of 4-10% is usually used (Federal Social Court [BSG], judgment of December 3, 2015 – B 4 AS 47/14 R –).
Source: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen: www.anwaltskanzlei-adam.de
4.8 – Lower Saxony-Bremen State Social Court, Judgment of 23 February 2016 – L 11 AS 1392/13
Principle (Juris)
1. In the case of an application pursuant to Section 44 of the German Social Code, Book X (SGB X) that is not sufficiently specific, there is no entitlement to a substantive review of the original decision (following: Federal Social Court (BSG), judgments of 13 February 2014 – B 4 AS 22/13 R – and 28 October 2014 – B 14 AS 39/13 R -).
2. The requirements for sufficient specificity cannot be circumvented by submitting several individual applications pursuant to Section 44 of the German Social Code, Book X (SGB X), which are also based on general grounds and not on individual circumstances, instead of a single general review application, with regard to practically all decisions issued to date.
3. If the rejection notice explains in detail to the person concerned that the rejection of the application pursuant to Section 44 of the German Social Code, Book X (SGB X) is based on a lack of specific details regarding the review request, the job center is neither obligated nor required to expressly request the person concerned to provide further information before issuing the appeal decision.
Source: socialcourtsability.de
Note:
Press release from the Lower Saxony-Bremen State Social Court dated April 21, 2016: SGB II: In social law, a review application can be submitted for all issued decisions, but it must be specifically justified.
Source: www.landessocialgericht.niedersachsen.de
4.9 – Lower Saxony-Bremen State Social Court, decision of 15 October 2015 – L 6 AS 1100/15
Matters under the German Social Code, Book II (SGB II) – Attribution of child benefit paid for a wealthy child
Principle (Juris):
Child benefit paid for a child who owns assets and therefore does not belong to the household is to be attributed to the parent entitled to it as income.
Source: socialcourtsability.de
Legal tip:
See also: LSG NRW, judgment of 25.02.2016 – L 7 AS 199/15
Note: The regulation in Section 11 Paragraph 1 of the German Social Code, Book II (SGB II) is not questioned in social court jurisprudence and – almost unanimously – also in the literature (contra – as far as can be seen – only Geiger in: LPK – SGB II 5th edition 2013 Section 11 marginal note 33, according to which consideration via a – fictitious – diversion pursuant to Section 74 Paragraph 1 of the Income Tax Act should be avoided.).
4.10 – Bavarian State Social Court, decision of 24.03.2016 – L 7 AS 140/16 B ER
Regarding the reimbursement of application costs in the integration administrative act
Principle (Juris):
1. If an integration administrative act pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) requires a significant number of costly job applications, a provision for the reimbursement of application costs is necessary. A cost provision for online or telephone applications is generally not required. (Official principle)
2. Preliminary legal protection against an integration administrative act is directed against the obligations arising from this administrative act and relates to a possible sanction. If a breach of duty has already occurred, preventive legal protection against a sanction is sought. (Official Headnote)
Source: socialcourtsability.de
4.11 – Bavarian State Social Court, decision of 22.03.2016 – L 7 AS 137/16 B ER
Sanction based on integration administrative act
Principle (Juris)
1. The addition in an integration administrative act regarding a validity period of six months… unless otherwise regulated in the meantime, is not an inadmissible ancillary provision under Section 32 of the German Social Code, Book X (SGB X). (Official principle)
2. Insofar as the addendum constitutes a supplementary provision, it is permissible under Section 32 Paragraph 2 of the German Social Code, Book X (SGB X), because the regular validity period of the administrative act can be deviated from at the discretion of the authority. (Official Headnote)
3. Insofar as the addendum is understood merely as an informational reference to the legal situation (amendability pursuant to Sections 45, 48 of the German Social Code, Book X, or replacement by an agreement), it lacks a supplementary provision within the meaning of Section 32 of the German Social Code, Book X, due to the absence of any regulatory content. (Official Headnote)
Source: socialcourtsability.de
4.12 – North Rhine-Westphalia State Social Court, decision of 22 March 2016 – L 7 AS 354/16 B ER – and – L 7 AS 355/16 B – legally binding
The Polish applicant is entitled to social assistance in preliminary legal protection proceedings.
Principle (Editor)
1. The respondent, as the provider of benefits to secure subsistence under the German Social Code, Book II (SGB II), is obligated to provide provisional benefits pursuant to Section 43 of the German Social Code, Book I (SGB I) (established case law of the Senate, cf. only decision of 16 December 2015 – L 7 AS 1466/15 B ER).
2. The Senate does not follow the differing case law of some lower courts (cf., among others, LSG Berlin-Brandenburg, decision of 22 January 2016 – L 29 AS 20/16 B ER; LSG Rhineland-Palatinate, decision of 11 February 2016 – L 3 AS 668/15 B ER; LSG Lower Saxony-Bremen, decision of 22 February 2016 – L 9 AS 1335/15 B ER; LSG North Rhine-Westphalia, decision of 7 March 2016 – L 12 SO 79/16 B ER) and considers a refusal of payment by the benefit providers to be manifestly unlawful.
Source: socialcourtsability.de
4.13 – North Rhine-Westphalia State Social Court, decision of 23 March 2016 – L 7 AS 1509/15
Unemployment benefit II – Special needs – Initial furnishing of an apartment – Vocational training – Trainees – Exclusion from benefits according to § 7 para. 5 SGB II – § 27 SGB II
Trainees cannot receive benefits for the initial furnishing of their apartment from the job center.
Principle (Editor)
1. An apprentice is entitled to the benefits listed in Section 27 Paragraphs 3 to 5 of the German Social Code, Book II (SGB II), but not to the requested initial equipment benefits, Section 24 Paragraph 3 Sentence 1 No. 1 SGB II, which are not covered by the benefits for apprentices in Section 27 SGB II.
2. The need pursuant to Section 24 Paragraph 3 Sentence 1 No. 1 of the German Social Code, Book II (SGB II) is classified by the legislator as a training-related need (Hamburg Higher Social Court, Judgment of July 8, 2014 – L 4 AS 229/13; Saxony-Anhalt Higher Social Court, Decision of January 10, 2012 – L 2 AS 465/11 B; Saxony-Anhalt Higher Social Court, Judgment of March 3, 2011 – L 5 AS 36/09).
Source: socialcourtsability.de
Legal tip:
See also LSG Berlin-Brandenburg, judgment of 26.02.2016 – L 28 AS 2230/12
4.14 – North Rhine-Westphalia State Social Court, Judgment of 21 May 2016 – L 6 AS 532/14
Basic income support for job seekers – consideration of income – expense allowances for caregivers – not a designated payment
Reimbursement of expenses from voluntary work as a guardian (§ 1835a BGB) is considered income and must be taken into account on a monthly basis.
Guiding principle (Editor)
1. Expense allowances for guardians (§ 1835a BGB) are – not – earmarked income that is exempt from being considered as income.
2. The compensation for expenses pursuant to Sections 1908i Paragraph 1 Sentence 1, 1835a Paragraph 1, 1835 Paragraph 1 of the German Civil Code (BGB) is not granted with an express purpose, as no further purpose can be derived from either the wording of the provision or the legislative history.
3. Section 1835a of the German Civil Code (BGB) is intended to spare volunteers the burden of documenting and accounting for even minor expenses. The provision thus serves solely to reimburse expenses incurred for the purpose of carrying out their duties as a guardian. No other purpose than the general reimbursement of expenses, such as the recognition of voluntary work, is apparent (see also Schmidt in: Eicher, SGB II, 3rd edition 2013, § 11a para. 19).
4. In view of the wording, which states that an amount of EUR 200.00 is to be taken into account "monthly", there is no room for an interpretation in favor of an annual allowance. If the legislator had intended to create an annual allowance for the benefit of volunteers, then the provision of Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) would have been superfluous.
Source: socialcourtsability.de
Legal tip:
a. A. Dortmund, judgment of April 30, 2015 (Case No.: S 30 AS 986/13) and SG Cottbus, judgment of August 20, 2014 – S 2 AS 3428/12
4.15 – Hessian State Social Court, Judgment of 18 March 2016 – L 7 AS 730/14
Basic income support for job seekers – Withdrawal of benefit approval due to failure to declare assets – Life insurance
In the case of undisclosed assets, there is no legal basis for limiting the suspension of benefits and reimbursement to the maximum assets that would have been fictitiously used up if the assets had been lawfully disclosed (contra LSG Sachsen-Anhalt, judgment of July 25, 2012, L 5 AS 56/10).
Guiding principle (Editor)
1. When taking undisclosed assets into account, no distinction can be made between granting benefits and recovering benefits.
2. If a benefit is granted to which there is no entitlement due to a lack of need, this benefit grant is unlawful in its entirety. Therefore, when assessing this benefit, no distinction can be made as to whether an entitlement to this benefit is being asserted or whether the grant of this benefit is to be revoked.
3. Considerations regarding the differentiation in the crediting of undisclosed assets in the case of benefit payments on the one hand and the recovery of these benefits on the other cannot be made within the framework of Section 50 of the German Social Code, Book X (SGB X). If an award has been revoked, Section 50 SGB X strictly stipulates that the revoked benefit must be fully reimbursed. Therefore, a recovery of benefits cannot be limited to a period in which the need for assistance could have been ensured with the creditable assets (as apparently argued by Geiger, in: Münder (ed.), Social Code, Book II – Basic Income Support for Job Seekers, Textbook and Practical Commentary, 5th edition 2013, Section 12, marginal note 87).
Source: socialcourtsability.de
Legal tip:
Contrary to: Higher Social Court of Saxony-Anhalt, judgment of July 25, 2012, L 5 AS 56/10, referring to the Social Court of Karlsruhe, judgment of June 30, 2011, S 13 AS 1217/09; following this, Social Court of Landshut, judgment of February 5, 2014, S 10 AS 390/12; similarly, Higher Social Court of Baden-Württemberg, judgment of July 22, 2011, L 12 AS 4994/10; Higher Social Court of Berlin-Brandenburg, judgment of March 12, 2010, L 5 AS 2340/08; Higher Social Court of Lower Saxony-Bremen, judgment of April 3, 2014, L 7 AS 827/12
4.16 – Hessian State Social Court, Judgment of 09.03.2016 – L 6 AS 379/15
Guiding principle (Editor):
1. Training allowances and vocational training assistance must be considered as income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). In particular, this is not a case of earmarked income that could preclude its consideration as income.
2. A deduction of the employment allowance pursuant to Section 11b Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) or the employment allowance pursuant to Section 11b Paragraph 3 of the SGB II is not applicable in this case. An employment allowance is only to be considered for income derived from gainful employment (see Federal Social Court, Judgment of September 27, 2011, B 4 AS 180/10 R). Neither the training allowance nor the vocational training assistance constitutes income from gainful employment and should not be treated as such.
3. Compare the parallel decision of the Senate of 9 March 2016, LSG Hessen, pending proceedings – L 6 AS 795/12″ L 6 AS 795/12.
Source: socialcourtsability.de
Legal tip:
See also: LSH Hessen, judgment of March 9, 2016 – L 6 AS 795/12 (An employment allowance is only to be considered for income from gainful employment (cf. Federal Social Court [BSG] of September 27, 2011 – B 4 AS 180/10 R). However, training allowance is not income from gainful employment and should not be treated as such); Federal Social Court [BSG], judgment of June 16, 2015 – B 4 AS 37/14 R – (As a needs-based, specific participation benefit for disabled persons, training allowance is not income from gainful employment and therefore should not be adjusted by an employment allowance or the employment allowance).
4.17 – Hessian State Social Court, Judgment of 09.03.2016 – L 6 AS 93/14
Principle (Juris)
1. Within the scope of its duty to investigate ex officio, the court must exhaust all available investigative avenues. However, the court is not obligated to pursue investigative avenues that are unattainable.
2. Only after all investigative possibilities have been exhausted can the fact be assessed according to the principles of objective burden of proof and determination.
3. In principle, the burden of proof for adverse revocation decisions lies with the authority. However, a reversal of the burden of proof is to be assumed due to the particular proximity of the evidence when it concerns facts that lie exclusively within the sphere of one of the parties involved.
Source: socialcourtsability.de
5. Decisions of the social courts on basic income support for job seekers (SGB II)
5.1 – Social Court Halle (Saale), Judgment of 16.02.2016 – S 7 AS 4358/14 – legally binding
Consideration of the preliminary or actual average income in the final decision
Consideration of average income in the final decision on the granting of social benefits
Guiding principle (Editor)
1. After a provisional approval with an average income, the actual average income must first be calculated for the final approval (sentence 2).
2. Secondly, if there is a significant deviation of more than 20 euros per month, this actual average income must be used as the basis for the final approval (sentence 3; cf. Söhngen in Juris-PK SGB II, § 11 para. 66, LSG North Rhine-Westphalia of 31 October 2012 – L 12 AS 691/11 -, LSG Saxony-Anhalt of 30 January 2013 – L 5 AS 487/10; SG Dortmund of 13 July 2015 – S 31 AS 3733/13).
3. The opposing view (cf. Social Court Nordhausen, judgment of September 12, 2013 – S 22 AS 7699/11; Social Court Leipzig, judgment of February 5, 2015 – S 18 AS 2159/11; Social Court Berlin, judgment of March 23, 2015 – S 197 AS 355/12), according to which the described regulations do not provide a legal basis for a final approval based on average values, is unconvincing. According to this view, the wording of Section 2 Paragraph 3 Sentence 3 of the Second Book of the Social Code (SGB II) implies that the provision only regulates the case of the practical non-implementation of a change due to its insignificance, but not the implementation in the case of a significant deviation. Consequently, if the difference between the assumed average income and the actual average income exceeds 20 euros, the statutory regulations on the accrual principle would apply.
Source: socialcourtsability.de
Legal tip:
See also: SG Berlin, judgment of 20 January 2016 – S 100 AS 9940/15 and SG Altenburg, judgment of 25 November 2015 – S 24 AS 145/15 – appeal pending before the Thuringian State Social Court under file number: L 7 AS 82/16
5.2 – Social Court Halle (Saale), Decision of 14 April 2016 – S 32 AS 1109/16 ER
Romanian applicants are not entitled to benefits under the German Social Code, Book II (SGB II). They are also not entitled to benefits under the German Social Code, Book XII (SGB XII) (contrary to the case law of the Federal Social Court).
Court Note
1. A right to discretionary decision-making only exists if the necessity of claiming benefits under the German Social Code, Book XII (SGB XII) is compelling. This decision is not compelling if the foreign nationals concerned have other options to end their need for assistance in Germany.
2. Contrary to the opinion of the Federal Social Court (BSG), the court here also considers the possibility of leaving the country to be sufficient.
3. Insofar as the Federal Social Court argues that this possibility is not relevant as long as the person's stay in Germany is effectively tolerated, the court cannot agree.
Source: socialcourtsability.de
5.3 – Social Court Dortmund, Judgment of 04.04.2016 – S 31 AS 2064/14
Flat-rate travel expenses from secondary employment cannot be counted towards Hartz IV benefits
Guiding principle (Editor):
If a recipient of benefits under the German Social Code, Book II (SGB II) receives a travel allowance for journeys on behalf of the employer through a secondary job, this allowance will not be counted towards the unemployment benefit II (ALG II).
Source: socialcourtsability.de
Legal tip:
Similar judgments can be found in the Social Court of Schwerin, case no. S 15 AS 1947/13, and the Social Court of Detmold, case no. S 18 AS 871/12; contra: Social Court of Nordhausen, case no. S 13 AS 1351/14, and most recently, Social Court of Rostock, judgment of January 25, 2016 – case no. S 5 AS 620/13.
5.4 – SG Braunschweig, Judgment of 13 January 2016 – S 17 AS 3211/12 – Appeal allowed
To cover additional costs for issuing a medical certificate when submitting an application for continued benefits and applying for additional needs due to costly nutrition.
The person in need is entitled to reimbursement of all costs incurred for issuing the medical certificate – additional nutritional needs
If the job center requires a medical certificate when applying for additional nutritional benefits, it must also cover the actual costs.
Principle (Editor)
1. The legal basis for the reimbursement of costs totaling €17.13 is Section 21 Paragraph 3 Sentence 4 of the German Social Code, Book X (SGB X) in conjunction with Section 670 of the German Civil Code (BGB) by analogy.
2. If the agent incurs expenses for the purpose of executing the order which he may deem necessary under the circumstances, the principal is obligated to reimburse him in accordance with § 670 BGB.
Source: socialcourtsability.de
5.5 – Social Court Kassel, Judgment of 17 March 2016 – S 8 AS 447/14 – The appeal is admitted
The concept for determining the appropriateness of accommodation costs in the Werra-Meißner district represents a coherent concept within the meaning of the BSG case law.
Guiding principle (Editor):
The concept for determining the appropriateness of accommodation costs in the Werra-Meißner district (as of March 2014) complies with the requirements of the Federal Social Court (BSG) for a conclusive concept.
Source: sozialgerichtsbarkeit.de
5.6 – Full text publication of the judgment of the Social Court of Gießen dated February 23, 2016: Request for information by the Job Center to the partner of an employable benefit recipient
. Social Court of Gießen, judgment of February 23, 2016 – S 22 AS 1015/14 – legally binding.
sozialgerichtsbarkeit.de
Regarding the press release from the Social Court of Gießen dated April 14, 2016
: sg-giessen-justiz.hessen.de
6. Decisions of the State Social Courts on Social Assistance (SGB XII)
6.1 – Baden-Württemberg State Social Court, Judgment of 14 April 2016 – L 7 SO 81/15
Regarding the assumption of funeral costs (rejected here).
It is not the purpose of social assistance to protect a person in need from the potentially unpleasant recourse against family members liable for benefits – in this case, siblings who are jointly and severally liable (cf. LSG North Rhine-Westphalia, judgment of October 29, 2008 – L 12 SO 3/08; Schleswig-Holstein LSG, decision of October 9, 2008 – L 9 B 434/08 SO ER).
Principle (Juris)
1. If the plaintiff fails to comply with his duty to cooperate in the court proceedings concerning his personal and economic circumstances, which are relevant for the assessment of (un)reasonableness within the meaning of Section 74 SGB XII, there is no reason to further investigate the personal and economic circumstances rooted in his sphere.
2. An entitlement to reimbursement of funeral expenses pursuant to Section 74 of the German Social Code, Book XII (SGB XII) may exceptionally be excluded if the claimant generally refuses to make his own efforts and the claims are readily enforceable (affirmed in the present case).
Source: socialcourtsability.de
6.2 – Social assistance benefits for EU citizens – Berlin-Brandenburg State Social Court, decisions of 13 April 2016 – L 15 SO 53/16 B, L 23 SO 46/16 B
In two preliminary injunction proceedings, the two senates of the Berlin-Brandenburg Higher Social Court (LSG) responsible for social assistance had to decide on the basis of the new case law of the Federal Social Court (BSG). The applicants in both proceedings are Polish nationals who were denied benefits under the German Social Code, Book II (SGB II) by the job center because they were only staying in Germany for the purpose of seeking employment (§ 7 para. 1 no. 2 SGB II).
In both cases, the LSG Berlin-Brandenburg ordered the social welfare provider to grant subsistence benefits for an initial period of three months.
During these three months, the respective social welfare provider must clarify the further circumstances of the individual case and, in particular, the respective residence status of the applicants in order to be able to make a well-founded discretionary decision on the continued granting of social assistance.
While the 15th and 23rd Senates of the Berlin-Brandenburg Higher Social Court (LSG) did not contradict the jurisprudence of the Federal Social Court (BSG), they imposed further investigations on the social welfare agencies, which in individual cases may ultimately lead to the discretion granted under Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) being exercised to the detriment of the affected parties, or to the job center being obligated to provide benefits under the German Social Code, Book II (SGB II) due to a consolidated right of residence.
The decisions are legally binding.
Source: Press release from the Berlin-Brandenburg Higher Social Court dated April 20, 2016: www.lsg.berlin.brandenburg.de
15th Senate, Decision of April 13, 2016, L 15 SO 53/16 B
sozialgerichtsbarkeit.de
www.lsg.berlin.brandenburg.de
23rd Senate, Decision of 13 April 2016, L 23 SO 46/16 B
www.lsg.berlin.brandenburg.de
6.3 – Bavarian State Social Court, Judgment of 21 January 2016 – L 8 SO 159/13
Regarding the granting of integration assistance in the form of covering the maintenance costs for the applicant's adapted vehicle (affirmed here)
A claim to vehicle assistance benefits as integration assistance for living in the community under Section 10 Paragraph 6 of the Integration Assistance Ordinance (EinglHV) requires continuous, not merely occasional or sporadic, use of the vehicle. For the disability-related necessity of a vehicle, only participation goals that serve participation in cultural and community life are relevant (Federal Social Court, Judgment of December 12, 2013 – B 8 SO 18/12 R).
Principle (Juris)
: 1. A disabled person who, in addition to an electric wheelchair, must always carry heavy medical equipment (here: 46 kg) cannot be referred to the use of the disabled transport service. (Official principle)
2. The concept of regularity within the meaning of Section 10 Paragraph 6 of the Integration Ordinance requires a minimum frequency of use of, or dependence on, a motor vehicle. (Official Headnote)
3. The minimum frequency need not generally correspond quantitatively to that in the area of participation in working life, i.e., approximately 22 trips per month. Rather, it depends on the circumstances of the individual case, in particular on the type and severity of the disability and on the nature of the trips claimed (further development of the Senate's case law, judgment of June 29, 2010, L 8 SO 132/09). (Official Headnote)
4. Journeys related to voluntary work for the benefit of disabled people are of particular importance in this context.
Source: socialcourtsability.de
6.4 – North Rhine-Westphalia State Social Court, Judgment of 18 February 2016 – L 9 SO 175/15
Turkish nationals are not entitled to receive standard benefits under Chapter 3 of the German Social Code, Book XII (SGB XII) due to their 6-week stay abroad.
A claim is excluded under Section 23 of the German Social Code, Book XII (SGB XII). Therefore, it is irrelevant whether an exclusion of claim also follows from Section 98 of the SGB XII or from Sections 2 and 27a, Paragraph 4, Sentence 1 of the SGB XII.
Principle (Juris):
A foreign recipient of benefits under Chapter Three of the German Social Code, Book XII (SGB XII) is not entitled to subsistence assistance at the standard rate for a stay abroad exceeding one month.
Source: socialcourtsability.de
7. Decisions of the administrative courts on asylum law
7.1 – Cologne Administrative Court, Judgment of 19 April 2016 – 5 K 79/16
Liability even after refugee status has been granted
Guiding principle (Editor):
A declaration of commitment to cover the living expenses of a refugee remains valid if the refugee is granted a residence permit after successful completion of an asylum procedure.
An appeal can be lodged against the judgment, which will be decided by the Higher Administrative Court of Münster.
Source: Press release from the Cologne Administrative Court dated April 19, 2016: www.vg-koeln.nrw.de
7.2 – Administrative Court Schwerin, 15th Chamber, Judgment of April 8, 2016, 15 A 262/16 As SN:
The initial transfer of unaccompanied minor asylum seekers is not governed by the Asylum Act.
Principle (Juris)
1. A forwarding order is an administrative act.
2. In the case of unaccompanied minor asylum seekers, the provisions of the referral under Sections 22 et seq., 46 et seq. of the Asylum Act are completely superseded by the more specific provisions of Sections 42, 42a et seq. of Book VIII of the Social Code.
3. A referral decision by the immigration authority cannot be made on the basis of the German Social Code, Book VIII (SGB VIII), as this decision must be made by the youth welfare office.
Source: www.landesrecht-mv.de
7.3 – VG Saarlouis, decision of 14.4.2016 – 6 L 186/16
On the prerequisites for expulsion pursuant to Section 53 Paragraph 1 of the Residence Act (AufenthG) as amended in 2016 and on the standing to sue (Sections 80 Paragraph 5, 42 Paragraph 2 of the Code of Administrative Court Procedure (VwGO)) of family members.
Principle (Juris)
1. The immediate enforcement of a deportation order, insofar as it burdens a third party, in particular the German spouse of a foreigner, does not require any special order from the immigration authority towards that third party.
2. The family members of the foreigner are entitled to file an application for preliminary legal protection pursuant to Section 80 Paragraph 5 of the Administrative Court Procedure Act (VwGO) analogously to Section 42 Paragraph 2 of the Administrative Court Procedure Act (VwGO), since they can assert that their rights under Article 6 Paragraph 1 of the Basic Law (GG) have been violated by the contested deportation order.
3. Deportation pursuant to Section 53 Paragraph 1 of the Residence Act (AufenthG F. 2016) requires a balancing of interests that is subject to full judicial review.
Important information from other legal codes such as pensions and labor law, and others
8. LArbG Berlin-Brandenburg: Hourly wage of 3.40 euros is considered a starvation wage and is therefore unconscionable
LArbG Berlin-Brandenburg, judgment of April 20, 2016 – 15 Sat 2258/15
Hourly wage of €3.40 deemed unconscionable as starvation wage:
The Berlin-Brandenburg
Regional Labor Court (LArbG) has ruled on a lawsuit filed by a job center against an employer for unconscionable wages paid before the Minimum Wage Act came into effect and the resulting need for benefits from the job center. According to the Regional Labor Court, the resulting hourly wage of €3.40 constitutes starvation wages. Even assuming full-time employment, the income is insufficient to live on. The agreement of starvation wages is unconscionable and therefore invalid under Section 138 Paragraph 1 of the German Civil Code (BGB). The usual remuneration is based on the findings of the State Statistical Office. For the year 2011, the plaintiff job center correctly assumed an hourly wage of €6.77, which increased to €9.74 by 2014. The court did not rule on whether the unconscionability could also be based on the principles of the European Social Charter.
The regional labor court did not allow the appeal to the Federal Labor Court.
Source: Press release of the Berlin-Brandenburg Regional Labor Court No. 20/2016 dated April 22, 2016 – www.juris.de
9. Koblenz Social Court: Pension insurance provider must pay misdirected pension to beneficiary.
Press release 4/2016 of the Koblenz Social Court – tinyurl.com
Pension insurance provider must pay pension to beneficiary – Pension paid to the wrong account must be paid again to the beneficiary.
Social Court Koblenz, decision of 08.04.2016, S 1 R 291/16 ER
Note:
If the eligible person has specified a particular account in their application and the transfer pursuant to Section 47 is made to a different account without justification, this transfer only has the effect of fulfilling the obligation if the eligible person agrees to it. If this is not the case, a further transfer must be made to the specified account. This ultimately constitutes a double payment, which must be reversed pursuant to Section 50 Paragraph 2 of the German Social Code, Book X (VGH Mannheim FEVS 54 p. 34; BSG SGb 2004 p. 631, note by Joussen). In this case, a right of retention on the part of the benefit provider must be assumed, at least by analogy to Section 273 of the German Civil Code (BGB), if the eligible person actually received the first transfer and had full access to it.
If it is a simple erroneous transfer, the benefit provider is referred to Section 812 of the German Civil Code (BGB) vis-à-vis the recipient, because there is no benefit-related relationship with the recipient that could be reversed via Section 50 Paragraph 2 of the German Social Code, Book X (SGB X) (cf. Mrozynski, SGB I, 5th edition, Section 47, marginal note 5).
10. Prof. Dr. Dr. hc Klaus Rennert, President of the Federal Administrative Court: For more legal remedies in asylum proceedings
The uniformity of jurisprudence is a highly valued asset. Its side effect is its predictability and calculability, both important elements of the fundamental value of legal certainty. There are various ways in which the uniformity of jurisprudence can be achieved. In the former Eastern Bloc, there were unsolicited so-called guidelines from the highest court, which were binding on the lower courts. This still exists here and there today. In contrast, the judiciary in Germany adheres to the discourse model: Each court is free in its interpretation of the law; uniformity is only established through the appeals process.
The freedom of the judge at the lower court level is enshrined in the constitution; Dürig aptly observed that jurisprudence is "constitutionally inconsistent." However, this is only tolerable if there are avenues for achieving uniformity. A certain degree of preliminary uniformity is already ensured by the collegial principle within the panel; discourse among colleagues rationalizes and moderates. Above all, however, the possibility of appeals ensures uniformity through the higher court.
Further information: www.brak-mitteilungen.de
11. Prof. Franz Josef Düwell, Presiding Judge of the Federal Labor Court (ret.): Federal Voluntary Service with a Focus on Refugees
Author: Prof. Franz Josef Düwell, Presiding Judge of the Federal Labor Court (ret.) Legal
Norms: Section 29a Asylum Procedure Act 1992, Section 3 Federal Voluntary Service Act, Section 2 Federal Voluntary Service Act, Section 32 Income Tax Act, Section 6 Federal Voluntary Service Act, Section 99 Works Constitution Act, Section 18 Federal Voluntary Service Act, Section 3 Federal Vacation Act, Section 85 Social Code Book IX, Section 2 Labor Court Act, Section 8 Federal Voluntary Service Act, Section 13 Federal Voluntary Service Act
Federal Volunteer Service with a focus on refugees
www.juris.de
12. Federal Social Court (BSG): A lower social court (LSG) judgment without a signature is invalid – Commentary by Attorney Prof. Dr. Hermann Plagemann
Re: BSG, Judgment of December 17, 2015 – B 2 U 150/15 B – dejure.org
BSG: A LSG ruling without a signature is not valid
Social Court Act (SGG) §§ 153, 160, 160a, 170; Code of Civil Procedure (ZPO) § 547
1. If the presiding judge signs the appeal judgment only with her initials, this constitutes a violation of § 153 para. 3 sentence 1 SGG. If the signature is not subsequently provided, an absolute ground for appeal on points of law exists after five months pursuant to § 202 SGG in conjunction with § 547 no. 6 ZPO.
2. For the purposes of dismissal pursuant to Section 160a Paragraph 5 of the Social Court Act (SGG) due to the established procedural defect, it is irrelevant whether the judgment issued without oral proceedings and not announced had already become effective or whether it is ultimately an ineffective non-judgment or sham judgment whose apparent validity must be eliminated. (Author's Headnotes)
Federal Social Court (BSG), decision of 17 December 2015 – B 2 U 150/15 B, BeckRS 2016, 66017
Comment by attorney Prof. Dr. Hermann Plagemann, Plagemann Rechtsanwälte Partnerschaft mbB, Frankfurt am Main
Source: rsw.beck.de
13. Minimum wage is insufficient for a pension above the basic social security level
Berlin (dpa) – Even after 45 years of contributions, a salary at the minimum wage level is not enough for a pension above the basic social security level. Instead, the hourly wage would have to be €11.68.
This information comes from a response by the German government to an inquiry from the Left Party, which was obtained by the German Press Agency in Berlin. The current minimum wage is €8.50.
According to the response, the additional €11.68 is needed to receive a net pension from the statutory pension insurance scheme, based on the pension reform taking effect this summer, that exceeds the average gross monthly requirement for basic income support for the elderly, which is €788. This calculation is based on a 38.5-hour work week and 45 years of employment.
Source: www.faz.net
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
