1. Decisions of the Federal Social Court of 24 February 2016 on social assistance (SGB XII)
1.1 – BSG, Judgment of 24.02.2016 – B 8 SO 13/14 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – standard rate – claiming increased needs due to disability – no deviating determination of individual needs – coverage of needs by standard rate and additional needs according to Section 30 Paragraph 1 of the German Social Code, Book XII – accommodation and heating – admissibility of deducting a household energy allowance from actual expenses
In the case of an "inclusive rent", a different calculation of the standard rate – possibly based on an estimate – may be considered.
Guiding principle (Editor)
1. The standard rate is not to be increased due to increased wear and tear on clothing and laundry caused by a disability, because the needs arising from the mode of transportation, even in cases of mental or psychological limitations that specifically affect the ability to walk, are covered by the additional needs allowance pursuant to Section 30 Paragraph 1 No. 2 of the German Social Code, Book XII (SGB XII).
2. A deduction of costs effectively agreed upon in the tenancy agreement from the benefits for accommodation and heating is regularly excluded, even if they do not directly cover housing needs, for example, rent shares for outbuildings or for a cable connection.
3. Electricity costs within the meaning of Section 2 No. 11 of the Operating Costs Ordinance, i.e., the electricity costs for lighting common areas such as stairs, basements, laundry rooms, etc., are considered actual expenses under both the old and new legal situation pursuant to Section 29 Paragraph 1 Sentence 1 of the German Social Code, Book XII (old version) or Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (new version), because the landlord can pass them on to the tenants without the latter being able to reduce or even avoid these costs.
4. If only such costs are covered by the agreed ancillary costs flat rate, a deduction of these costs from the costs of accommodation as well as from the standard rate or standard benefit is excluded; they are an inseparable part of the costs of accommodation and have not been included in the calculation of the standard rates as "household electricity" (cf. BT-Drucks 17/3404, p. 56), so that there is no "double payment" of social benefits.
5. On the other hand, it is conceivable that the free provision of electricity by a third party would lead to a reduction in the plaintiff's basic income support entitlement when considering her income. Actual benefits in cash or in kind (here, the conceivable exemption from all electricity costs) are taken into account even if they cannot be expected from family members in the case of Section 43 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII).
Source: juris.bundessocialgericht.de
2. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
2.1 – State Social Court of North Rhine-Westphalia, Decision of 01.08.2016 – L 19 AS 1437/16 B ER – legally
binding Principle (Editor):
On the granting of benefits pursuant to Sections 19, 27, 27a SGB XII based on a balancing of interests, because, according to the current state of affairs, the Croatian applicant's success against the intervener in the main proceedings is uncertain and a claim for an injunction has been substantiated.
Source: socialcourtsability.de
2.2 – North Rhine-Westphalia State Social Court, decision of 19 July 2016 – L 7 AS 934/16 B ER – legally binding
Provision of preliminary benefits in jurisdictional disputes in preliminary injunction proceedings – Romanian applicant is entitled to standard benefits
Guiding principle (Editor)
1. Provisionally granted benefits are to be regarded as aliud in relation to final benefits, the granting of which has no binding effect on the final benefit (BSG, judgment of 29.04.2015 – B 14 AS 31/14 R) and which can therefore be provided independently of the rejection of finally due benefits.
2. In case of doubt, the application for benefits should also be considered an application within the meaning of Section 43 Paragraph 1 Sentence 2 of the German Social Code, Book I (SGB I), for the provision of provisional benefits. An application is any declaration of intent made to the first contacted benefit provider, from which – if necessary through interpretation – it can be inferred that the entitled person desires at least provisional benefits.
3. The respondent's rights are protected because, in the event that the applicants are excluded from benefits to secure their livelihood, he can assert a claim for reimbursement against the intervener as the social assistance provider pursuant to Section 102 of the German Social Code, Book X (SGB X).
Source: socialcourtsability.de
2.3 – Bavarian State Social Court, Judgment of 20 December 2011 – L 11 AS 734/09
Regarding the granting of benefits to secure the livelihood (unemployment benefit II – Alg II) according to the Second Book of the Social Code (SGB II) for the resident of a social therapeutic residential group (here affirmed).
Guiding principle (Editor)
1. The social-therapeutic residential group of the institution is not to be regarded as an inpatient facility within the meaning of Section 7 Paragraph 4 Sentence 1 SGB II, so that the actual exercise of gainful employment was not relevant.
2. The decisive factor remains whether the facility's objective extends beyond providing accommodation and meals to include a comprehensive 24/7 care program. Further criteria include the frequency of mandatory attendance at the facility and the level of monitoring of daily routines. Facilities where the beneficiary retains a certain degree of independence, such as retirement homes or women's shelters, or where they can regularly return to their place of residence, such as workshops for people with disabilities or facilities for troubled youth, generally do not meet these requirements. Therefore, in these cases, there is no exclusion from benefits under paragraph 4, sentence 1, alternative 1.
Source: socialcourtsability.de
2.4 – LSG Munich, decision of 29.06.2016 – L 7 AS 380/16 B ER
Principle (Juris):
No maintenance payments under the Hague Regulations on Land Warfare due to lack of prisoner-of-war status.
Source: socialcourtsability.de
2.5 – State Social Court of Saxony-Anhalt, Judgment of June 30, 2016 – L 2 AS 260/15 – The appeal is granted.
The question is whether, with regard to the purpose of Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), a further exception to the exception should be recognized, such that a subsequent stay in another institution not falling under Section 7 Paragraph 4 Sentence 3 No. 1 SGB II within the meaning of Sentences 1 and 2 should be included in the prognosis, just as the treatment of the interruption of sentence under Section 455 Paragraph 4 of the German Code of Criminal Procedure (StPO) should be carried out.
The applicant was not excluded from ALG II (unemployment benefit II), because for periods of interruption of sentence and stays in hospital, the exception in Section 7 Paragraph 4 Sentence 3 No. 1 SGB II to Paragraph 4 Sentence 1 applies. Periods of interruption of sentence according to Section 455 Paragraph 4 StPO (German Code of Criminal Procedure) are not periods in which a person entitled to benefits is in a facility for the execution of judicially ordered deprivation of liberty.
Principle (Juris)
1. During a break in detention within the meaning of Section 455 Paragraph 4 of the Code of Criminal Procedure, there is no stay in a facility for the execution of judicially ordered deprivation of liberty within the meaning of Section 7 Paragraph 4 Sentence 2 of the Social Code, Book II.
2. If a person claiming benefits under Book II of the German Social Code (SGB II) is in a hospital during a suspension of detention pursuant to Section 455 Paragraph 4 of the German Code of Criminal Procedure (StPO) (Section 107 of Book V of the German Social Code (SGB V)), the duration of this stay, which is to be predicted pursuant to Section 7 Paragraph 4 Sentence 3 Number 1 of Book II of the German Social Code (SGB II) (exception to the exclusion of benefits), is to be based solely on the anticipated duration of the hospital stay. The preceding or subsequent period of imprisonment cannot be taken into account.
3. The exception in Section 7 Paragraph 4 Sentence 3 Number 1 of the German Social Code, Book II (SGB II), aims, according to its regulatory purpose, to clearly distinguish between the social security systems of SGB II and SGB XII and to prevent a transfer from the SGB II benefit system to the SGB XII benefit system in cases of foreseeable short-term hospitalization. Therefore, when making a prognostic decision at the time of admission to the hospital for a person claiming SGB II benefits, it must also be considered whether the person in question was already receiving benefits under SGB XII prior to this admission, i.e., whether the question of avoiding a transfer between the social security benefit systems even arises (following the Federal Social Court's judgment of November 12, 2015 – B 14 AS 6/15 R).
Source: socialcourtsability.de
2.6 – Thuringian State Social Court, judgment of 12.05.2016 – L 9 AS 635/14 legally binding
Principle (Juris)
On the legality of a cancellation and reimbursement order with regard to alternative coverage of the costs of accommodation and heating in the case of minimal consumption values.
Source: socialcourtsability.de
2.7 – Thuringian State Social Court, Judgment of 17 March 2016 – L 9 AS 898/15 – legally binding
On the legality of an administrative act replacing an integration agreement.
Principle (Juris):
Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) does not violate the fundamental right to a dignified minimum standard of living.
Source: socialcourtsability.de
Legal tip:
This likely also applies to the outcome; Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of December 21, 2015 – L 12 AS 1884/15 B ER; Higher Social Court of Munich (LSG München), judgment of February 26, 2015 – L 7 AS 781/14; Higher Social Court of North Rhine-Westphalia (LSG NW), decision of March 20, 2014 – L 19 AS 373/14 B ER; Higher Social Court of Saxony-Anhalt (LSG Sachsen-Anhalt), decision of February 10, 2014 – L 5 AS 997/13 B ER; Higher Social Court of Hamburg (LSG Hamburg), judgment of November 15, 2012 – L 4 AS 73/12
2.8 – Berlin-Brandenburg State Social Court, decision of 01.07.2016 – L 26 AS 1421/16 B ER – legally binding
EU foreigner – exclusion from benefits – right of residence – school attendance – parental custody – protection of marriage and family
Greek applicants are entitled to ALG II (unemployment benefit II). Under Article 10 of Regulation 492/11 EU, a right of residence for the parents may be derived if the child has resumed regular school attendance during the parent's right to freedom of movement under EU law following an involuntary job loss.
Guiding principle (Editor)
1. Article 10 of Regulation No. 492/11/EU establishes a right of residence, independent of the purpose of job seeking, for every parent who has actual custody of a child exercising their right to attend school.
2. According to the explicit wording of the provision (“has been employed”), the child’s right of residence – and thus also that of his or her parents – also applies to the children of former migrant workers.
3. Finally, the right of residence under Article 10 of Regulation No. 492/11/EU is not dependent on parents and children having sufficient means of subsistence or comprehensive health insurance coverage (Federal Social Court, judgment of 3 December 2015 – B 4 AS 43/15 R –, with further references, see also Higher Social Court Hamburg, decision of 27 May 2016 – L 4 AS 160/16 B ER –, Higher Social Court Saxony-Anhalt, decision of 29 April 2016 – L 4 AS 182/16 B ER –, Higher Social Court for the State of North Rhine-Westphalia, decision of 27 January 2016 – L 19 AS 29/16 B ER).
Source: socialcourtsability.de
Legal tip: aA: LSG Lower Saxony-Bremen, B v 15.1.2016, L 15 AS 226/15 B ER
2.9 – Berlin-Brandenburg State Social Court, Judgment of 08.06.2016 – L 18 AS 3341/14
Residential facility within the meaning of Section 7 Paragraph 4 of the German Social Code, Book II (SGB II) – Unemployment Benefit II – Assistance for living expenses – Synanon Foundation
Regarding the question of whether life at the Synanon Foundation constitutes inpatient care within the meaning of Section 7 Paragraph 4 of the German Social Code, Book II (here affirmed).
Life in a Synanon house is to be considered as inpatient accommodation according to § 7 para. 4 SGB II.
Guiding principle (Editor):
Life in the homes of the Synanon Foundation, according to the nature and concept of the assistance concept, fundamentally excludes availability on the general labor market, which necessitates its classification as a residential facility within the meaning of Section 7 Paragraph 4 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Gotha, decision of 02.08.2016 – S 15 AS 5157/14
The Gotha Social Court continues to consider Hartz IV sanctions unconstitutional and is once again appealing to the Federal Constitutional Court
Sanctions endanger lives
: Social court judges in Gotha are once again appealing to the Federal Constitutional Court in Karlsruhe. The court had previously rejected a submission due to procedural errors.
Source: www.jungewelt.de
See also press release SG Gotha of 03.08.2016:
Gotha Social Court again appeals to the Federal Constitutional Court in Karlsruhe – Hartz IV sanctions still under review.
Source: forum.tacheles-socialhilfe.de
Full text: www.sggth.thueringen.de
I. The proceedings are suspended pursuant to Article 100, paragraph 1, sentence 1 of the Basic Law.
II. The following questions are submitted to the Federal Constitutional Court for a decision:
II.1. Is Section 31a in conjunction with Sections 31 and 31b of the German Social Code, Book II (SGB II), as amended on May 13, 2011 (Federal Law Gazette I, pp. 850, 2094), valid from April 1, 2011, compatible with Article 1 Paragraph 1 of the German Basic Law (GG) in conjunction with Article 20 Paragraph 1 GG – social state – and the resulting fundamental right to a guaranteed minimum standard of living that ensures human dignity, insofar as the unemployment benefit II, which is decisive for securing the socio-cultural minimum standard of living, is reduced by 30% or 60% of the standard benefit rate applicable to the employable person entitled to benefits due to breaches of obligations, or is completely eliminated in the case of further breaches of obligations?
II.2. Is Section 31a in conjunction with Sections 31 and 31b of the German Social Code, Book II (SGB II), as amended on 13 May 2011 (Federal Law Gazette I, p. 850, 2094), valid from 1 April 2011, compatible with Article 2, Paragraph 2, Sentence 1 of the German Basic Law (GG) insofar as sanctions, if they lead to a threat to life or impairment of the health of the person sanctioned, violate the right to life and physical integrity?
II.3. Is Section 31a in conjunction with Sections 31 and 31b of the German Social Code, Book II (SGB II), as amended on 13 May 2011 (Federal Law Gazette I, p. 850, 2094), valid from 1 April 2011, compatible with Article 12 of the German Basic Law (GG) insofar as it violates the freedom to choose one's profession?
3.2 – Chemnitz Social Court, Judgment of June 9, 2016 – S 10 AS 2368/14 – Appeal pending before the Saxon State Social Court – L 8 AS 830/16
Co-ownership of a property – Section 24 Paragraph 5 SGB II loan-based benefit unlawful if no prognosis is made
Guiding principle (Editor)
1. The benefit should not be granted as a loan, but as a subsidy.
2. Because the preparation of a forecast is a prerequisite for the granting of the benefit in the form of a loan.
3. In fact, no predictive decision was made for any of the loan decisions to be reviewed.
4. The loan was therefore disbursed unlawfully. The payment should therefore be made as a grant.
Source: socialcourtsability.de
3.3 – SG Mainz, decision of 18.04.2016 – S 3 AS 99/14
Unconstitutionality of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II)
Principle (Juris)
1. The exclusion provision of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) violates the fundamental right to a guaranteed minimum standard of living in accordance with human dignity, as enshrined in Article 1 Paragraph 1 of the German Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the German Basic Law (GG).
2. There is no apparent constitutional argument as to why certain persons should not be entitled to the fundamental right to a dignified minimum standard of living simply because they are undertaking vocational training or university studies.
Source: www.mjv.rlp.de
Legal tip:
Social Court Mainz, decision of 18 April 2016 – S 3 AS 149/16 – Unconstitutionality of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II and Section 7 Paragraph 5 SGB II
3.4 – SG Hildesheim, decision of 21.07.2016 – S 36 AS 4143/16 ER
It is not a requirement for an ALG II application that all documents proving the need for assistance be submitted at this stage.
Job centers are not allowed to refuse to accept “incomplete” ALG II applications, as this is not provided for in the law.
Guiding principle (Editor)
1. The job center is mistaken if it assumes that an application for basic income support for job seekers within the meaning of Section 37 (1) SGB II is only considered submitted when an application form with all application documents deemed necessary by the benefit provider has been presented.
2. The benefit provider is also not entitled to refuse acceptance of an application that, in its opinion, is incomplete.
Source: Attorney Kevin Kienert, Hildesheim
Legal tip:
See also Social Court Nuremberg, decision of 22 December 2008 – S 20 AS 1415/08 ER; Social Court Augsburg, judgment of 28 October 2008 – S 6 AS 844/08
4. Decisions of the social courts on employment promotion (SGB III)
4.1 – Social Court Leipzig, Judgment of 09.06.2016 – S 1 AL 251/15 – legally binding
SG Leipzig: Accountant receiving benefits under SGB III does not have to participate in unsuitable training measures.
Lawyer: Decision groundbreaking
For her lawyer Sebastian E. Obermaier, the Leipzig decision (file number: S 1 AL 251/15) is groundbreaking.
"This clearly rejects the Federal Employment Agency's view that there is no legal recourse against assignments to training programs," he said. The Leipzig Social Court has ruled for the first time in Germany that those affected can obtain legal protection not only against benefit suspensions, but primarily also against pointless training programs. Furthermore, the courses must be appropriate to the individual's profile.
Source: m.lvz.de
Sat: Employment agency courses unrelated to the industry are unacceptable: www.radiosaw.de
Sat: @mephisto976 with a detailed report on "our" ruling regarding the allocation of unemployment benefit recipients to integration measures mephisto976.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – State Social Court of Saxony-Anhalt, decision of 06.04.2016 – L 8 SO 4/16 B ER – legally binding
The applicant is not entitled to the issuance of an interim order for the provisional assumption of the costs for an integration aide or school support worker.
Principle (Juris):
In special education schools pursuant to Section 8 Paragraph 1 Sentence 3 of the Saxony-Anhalt School Act, pedagogical staff and support personnel assist and supplement instruction and the individual support of students. Deficits in the staffing of a special education school are not to be compensated for by secondary benefits under the German Social Code, Book XII (SGB XII). If the school no longer has a sufficient number of pedagogical staff to support all students, this must be addressed with the State of Saxony-Anhalt, which is responsible for schools.
Source: socialcourtsability.de
5.2 – State Social Court of Saxony-Anhalt, decision of 31 May 2016 – L 8 SO 8/16 B ER – legally binding
Romanian applicants (Ast.)
Principle (Juris)
1. Only in cases where the right of residence of a Union citizen has been conclusively determined can the reduction of discretion to zero assumed by the Federal Social Court (BSG) in its judgment of December 3, 2015 (- B 4 AS 44/15 -, juris) apply. The Senate concurs with the 15th Senate of the Higher Social Court of Berlin-Brandenburg (decision of April 13, 2016 – L 15 SO 53/16 B ER -, juris).
2. Within the framework of the constitutionally compliant interpretation of Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII), which the Federal Social Court (BSG) deemed necessary and possible, the safeguarding of the minimum subsistence level for the period of preliminary legal protection, in accordance with the requirements of Articles 1 Paragraph 1, 2 Paragraph 2, 6 Paragraph 1 and 20 Paragraph 1 of the German Basic Law (GG), can be sufficiently achieved through benefits in the amount of the unavoidable need provided for in Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
3. Based on this, and considering a preliminary benefit period of three months, the applicants' needs are covered by the ongoing child benefit payments and the remaining amount from a retroactive child benefit payment. During this period, the SGB XII benefits provider has the opportunity to conduct further investigations into the applicants' residency status.
Source: socialcourtsability.de
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – SG Mainz, decision of 07.07.2016 – S 12 SO 81/16 ER
SGB XII – EU foreigners after 6 months
Principle (Editor)
1. Obligation of the social welfare provider to provide provisional benefits under the German Social Code, Book XII (SGB XII) for Romanian nationals by way of expedited legal protection.
2. In the case of a permanent residence, the discretion of the social welfare provider is reduced to zero according to § 23 para. 1 sentence 3 SGB XII (see BSG, judgment of 03.12.2015 – B 4 AS 44/15 R).
Source: Attorney Thomas Scheffler, 55545 Bad Kreuznach
6.2 – Press release from the Osnabrück Social Court dated June 6, 2016 – On the consideration of a funeral pre-arrangement contract within the framework of the asset test according to the German Social Code, Book XII (SGB XII)
The Osnabrück Social Court had to clarify in several proceedings in the field of social assistance whether funeral pre-arrangement contracts constitute realizable assets to be used to cover uncovered nursing home costs in accordance with Section 90 of the German Social Code, Book XII (case numbers S 5 SO 113/15, S 5 SO 233/12, S 5 SO 161/14, S 5 SO 15/15, S 5 SO 171/13, S 5 SO 32/15, S 5 SO 52/15).
The court followed the decision of the Lower Saxony-Bremen State Social Court of April 24, 2014 (case number L 8 SO 269/10). It must be examined in each individual case whether the realization of funeral expenses constitutes a hardship for the individuals concerned within the meaning of Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII), which would preclude using the otherwise generally available assets to cover the uncovered costs of nursing home care.
One criterion for assessing whether hardship exists is the point in time when the funeral pre-arrangement contract was concluded. It must be examined whether the contract was concluded at a time when the primary concern was a generally legitimate desire to arrange the funeral, rather than securing assets and relieving the burden on relatives. If a funeral pre-arrangement contract is concluded shortly before or after admission to a care facility, the timing suggests that securing assets and relieving the burden on relatives were the primary concerns at the time of the contract's conclusion. If a funeral pre-arrangement contract was concluded a greater time after the onset of the need for care – possibly also in connection with other objectively identifiable arrangements for the event of needing care – this is more likely to indicate hardship.
The compensation payments sometimes agreed upon with funeral homes for the cancellation of a funeral pre-arrangement contract do not regularly result in the realization of the funeral pre-arrangement assets being uneconomical.
Some of the judgments are legally binding.
Source: www.socialcourt-osnabrueck.niedersachsen.de
6.3 – Social Court Karlsruhe, Judgment of July 28, 2016 – S 3 SO 3787/15 – The appeal is granted.
Social assistance; standard benefit rate; interest; due date; review procedure.
Case law is divided on which point in time is decisive for the due date and thus for the commencement of interest.
Principle (Juris)
1. The interest claim under Section 44 of the German Social Code, Book I (SGB I), as an accessory ancillary benefit to the main claim, shares its legal fate, so that in the case of a subsequent payment of a social benefit based on a review application under Section 44 of the German Social Code, Book X (SGB X), the point in time at which interest begins is not to be based on the review application concerning the main benefit or the decision thereon, but on the earlier due date after the first benefit application in the original administrative procedure.
2. If, on the instructions of the Federal Ministry of Labour and Social Affairs (BMAS) of 31 March 2015, the social welfare provider grants higher benefits under the German Social Code, Book XII (SGB XII), taking into account a supplement equal to the difference between the standard benefit level 3 and the (higher) standard benefit level 1, it shall pay interest on the resulting back payment in accordance with Section 44 of the German Social Code, Book I (SGB I), based on the due date of the originally granted benefits.
Source: socialcourtsability.de
7. Commentaries, essays and miscellaneous
7.1 – Job centers may not reclaim interest on Hartz IV back payments, an article by attorney Thorsten Blaufelder, Blaufelder law firm
If long-term unemployed individuals receive interest payments from the job center on a delayed Hartz IV benefit payment, they are entitled to keep these payments. The job center may not later deduct the interest payments as income, thereby reducing their Hartz IV benefits, the Baden-Württemberg State Social Court (LSG) ruled in a recently published judgment dated June 21, 2016 (Case No.: L 9 AS 4918/14). Due to the fundamental importance of the case, the Stuttgart judges granted leave to appeal to the Federal Social Court (BSG) in Kassel.
Source: www.anwalt.de
7.2 – KOS: Information on compulsory retirement
Here we provide information on developments in practice, legislation, and case law regarding forced early retirement. We recommend taking legal action against any demand to apply for a pension with deductions. Every month that can delay retirement reduces the deductions and is a victory.
Forced retirement – Updated article from A-Info No. 177, June 2016 [PDF, 1 page]
Overview of legal options as of July 2016 [PDF, 4 pages]
PowerPoint presentation from an information event at ver.di Oldenburg in July 2016 [PDF, 19 slides]
Source: www.kaufslos.de
www.kaufslos.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
