1. Decisions of the Federal Social Court of 23 June 2016 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 23.06.2016 – – B 14 AS 4/15 R
Guiding principle (Editor):
1. If a person entitled to maintenance does not receive SGB II benefits, the SGB II provider has no right to information against the person liable for maintenance pursuant to Section 60 Paragraph 2 SGB II.
2. Social security agencies under the German Social Code, Book II (SGB II), cannot demand unlimited information about the income and assets of parents obligated to pay child support. If separated parents have reached an agreement on child support payments in a family court settlement, the agency cannot later demand information about the income of the parent obligated to pay support by means of an official notice.
3. The necessary event triggering the entitlement to benefits under Section 60 Paragraph 2 Sentence 1 Alternative 1 of the German Social Code, Book II (SGB II) is lacking. This event begins with the submission of an application for a specific benefit and ends when the application for benefits has been rejected or withdrawn (Federal Social Court judgment of June 4, 2014 – B 14 AS 38/13 R).
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 23.06.2016 – B 14 AS 46/15 R
Basic income support for job seekers – priority benefits – legality of the request to apply for early retirement – final regulation of the hardship clause – review of the discretionary decision – absence of an atypical case – constitutionality
Principle (Editor):
On the legality of a request to apply for early retirement (here affirmed).
Source: juris.bundessozialgericht.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, decision of 02.08.2016 – L 7 AS 461/16 B ER
The existence of a cohabiting relationship must be established separately for each approval period
Principle (Juris)
1. The existence of a cohabiting relationship must be established separately for each benefit period. (official principle)
2. The assessment of a previous benefit period as a cohabiting partnership has no binding effect on subsequent periods. (Official legal principle)
3. Housing costs (KdUH) are not to be granted in expedited proceedings if there is no apparent risk to the accommodation. (Official Headnote)
4. Standard benefits are not to be granted in expedited proceedings if the livelihood of the residents in the shared accommodation is ensured. (Official Headnote)
5. If income is readily available that covers at least 70% of the standard benefit, no standard benefit is to be granted in preliminary proceedings, considering the principle of anticipating the main issue. (Official Headnote)
6. Health insurance coverage cannot be obtained in individual cases. (Official legal principle)
Source: socialcourtsability.de
2.2 – Bavarian State Social Court, decision of 01.08.2016 – L 7 AS 415/16 B ER and L 7 AS 416/16 B ER
Preliminary legal protection against an integration administrative act
Principle (Editor)
1. On the legality of an integration administrative act (affirmed here).
2. The integration administrative act is also not manifestly unlawful simply because the obligations imposed on the applicant by the integration administrative act are not matched by an appropriate determination of services for integration into the workforce pursuant to Section 15 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) (cf. Federal Social Court judgments of June 23, 2016, B 14 AS 30/15 R and B 14 AS 42/15 R). The commitments made by the respondent in the integration administrative act are tailored to the individual needs of the applicant insofar as a personal contact person was guaranteed to assist the applicant in fulfilling their obligations. Therefore, the exercise of discretion in the integration administrative act was no longer necessary (Federal Social Court judgment of June 23, 2016, B 14 AS 42/15 R).
3. The notification of legal consequences rightly includes a reference to the possibility of sanctions for breaches of duty. Sanctions are generally not unconstitutional (Federal Social Court judgment of April 29, 2015, B 14 AS 19/14 R, para. 50 et seq.). The applicant's reference to the referral order of the Gotha Social Court is irrelevant, since the Federal Constitutional Court did not accept the referral for a decision (Federal Constitutional Court decision of May 6, 2016, 1 BvL 7/15).
Source: socialcourtsability.de
2.3 – Bavarian State Social Court, decision of 27 July 2016 – L 7 AS 414/16 B ER
Cohabiting partnership
Principle (Juris):
For the intention to assume responsibility for one another and to stand up for one another (intention to stand up for one another), there are legal presumptions that establish such an intention. This presumption can be strengthened by further evidence. Statements to the contrary made by those affected, with knowledge of the legal consequences of a cohabiting relationship, carry less weight as evidence.
Source: socialcourtsability.de
2.4 – Bavarian State Social Court, Judgment of 20 July 2016 – L 11 AS 162/16
court
's doubts about the constitutionality of the sanction regulations. In particular, the Federal Constitutional Court has not demanded unconditional, tax-financed state benefits (see Federal Constitutional Court, decision of July 7, 2010 – 1 BvR 2556/09; Federal Social Court, judgment of November 9, 2010 – B 4 AS 27/10 R; decision of the Senate of August 25, 2015 – L 11 AS 558/15 B ER).
Source: socialcourtsability.de
2.5 – Bavarian State Social Court, decision of 21 July 2016 – L 16 AS 409/16 B ER
Examination of the legality of the request to apply for priority benefits in case of reduced earning capacity
Principle (Juris):
1. In cases of total incapacity for work, a recipient of benefits under the German Social Code, Book II (SGB II), may be required to apply for benefits under the German Social Code, Book XII (SGB XII), pursuant to Sections 5(3) and 12a of the SGB II. (Official principle)
2. When assessing the legality of the request, it must be verified whether a priority benefit pursuant to Section 12a of the German Social Code, Book II (SGB II) exists. (Official Headnote)
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Stuttgart, Judgment of 11.02.2016 – S 20 AS 4798/14
Court Note
1. Cosmetic repairs must generally be carried out by the benefit recipient themselves – if necessary with the help of neighbors and relatives. Even a tenant who is not in need and not receiving benefits under the German Social Code, Book II (SGB II), would have been obligated to carry out the relevant work themselves.
2. Only if the person entitled to benefits cannot carry out the cosmetic repairs themselves due to age, disability, physical condition or the care of small children, can the assumption of the expenses for a professional move-out renovation be considered.
3. The fact that the person entitled to benefits is a woman does not automatically render the situation unreasonable.
3.2 – Social Court Karlsruhe, decision of 21 July 2016 – S 17 AS 2115/16
Basic income support for job seekers; calculation of average income according to Section 2 of the Unemployment Benefit II Ordinance; forecast
Principle (Juris):
When calculating average income according to Section 2 Paragraph 3 Sentence 1 of the Unemployment Benefit II Ordinance (AlG-II-VO) for the provisional granting of benefits, the expected income must be determined by means of a forecast. Significant changes in the expected income situation must be taken into account.
Source: socialcourtsability.de
3.3 – Social Court Dresden, Judgment of 14 July 2016 – S 32 AS 5114/12 – The appeal is admitted.
Regarding the consideration of operating cost credits in reimbursement situations despite offsetting by the landlord (affirmed here).
Guiding principle (Editor)
1. Despite the landlord's "offsetting" of operating cost credits against rent arrears, this constitutes income which, according to § 22 para. 1 sentence 4 SGB II aF, had to be taken into account as reducing the need for assistance.
2. Credits for ancillary costs arising from a tenancy are subject to a prohibition of offsetting and must be taken into account as reducing benefits for accommodation costs in accordance with Section 22 Paragraph 3 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
Legal tip:
See, for example, the judgment of the Lower Saxony-Bremen State Social Court of 24 November 2015 – L 7 AS 1148/14
3.4 – Social Court Dresden, decision of 03.08.2016 – S 20 AS 3306/16 ER
Principle (Editor):
An objection against an administrative act by which legally granted ongoing benefits of basic income support for job seekers are withdrawn due to lack of cooperation has suspensive effect.
Source: socialcourtsability.de
Legal tip:
See also LSG Saxony, 19.04.2016 – L 7 AS 172/16 B ER
3.5 – Social Court Halle (Saale), Decision of 08.08.2016 – S 16 AS 2316/16 ER
Matters under the German Social Code, Book II (SGB II), Section 7 Paragraph 1 Sentence 2 No. 2 SGB II, Section 2 Freedom of Movement Act/EU, Section 23 Paragraph 1 Sentence 3 SGB XII
The Romanian applicants have failed to provide sufficient evidence to support their claim for an injunction.
Principle (Juris)
1. The self-employment of an EU citizen cannot confer a right of free movement if it is inherently unsuitable for generating an income that is at least partially sufficient to cover the needs of the household receiving benefits, and if no significantly higher profits are anticipated in the future. This is to be assumed if – as in this case – less than one-fifth of the household's needs are met over a period of ten months and a viable business plan for the self-employment is not apparent.
2. In such a case, it can be assumed that the self-employment is not pursued in order to generate sufficient income to cover needs in the foreseeable future, but rather to create the conditions for the residence in Germany to be financed essentially by state benefits under the German Social Code, Book II (SGB II) for an indefinite period.
3. The legal provision in Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) does not establish an entitlement for EU citizens to mandatory benefits after six months of residence in Germany (contrary to the Federal Social Court's decision of December 3, 2015 – B 4 AS 44/15 R = SozR 4-4200 § 7 No. 43).
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Employment Promotion (SGB III)
4.1 – LSG Baden-Württemberg Judgment of 22 July 2016 – L 8 AL 15/16
Principle (Juris)
1. The daily allowance for disability insurance granted in Switzerland, which is subject to contributions to the Swiss unemployment insurance scheme, is not considered remuneration within the meaning of Section 14 Paragraph 1 Sentence 1 of the German Social Code, Book IV (SGB IV), as it is not based on or related to employment. It corresponds to transitional allowance under German law.
2. Income earned from paid internships undertaken in Switzerland during retraining, in addition to receiving disability insurance daily allowances, is not to be taken into account when calculating unemployment benefits under German law.
3. The generally constitutionally permissible fictitious calculation of unemployment benefits does not necessitate, even for insured persons who previously worked as cross-border commuters, an interpretation of Section 152 of the German Social Code, Book III (SGB III), that the fictitious calculation be based on potentially higher collectively agreed wages in the relevant sector abroad instead of on qualification groups. This does not constitute an unjustifiable omission of differentiation that violates the principle of equal treatment. Nor does such an interpretation arise from international treaty law, such as the agreement between the Swiss Confederation and the EU on freedom of movement or the agreement between the Federal Republic of Germany on unemployment insurance.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Berlin-Brandenburg State Social Court, decision of 22 July 2016 – L 15 SO 73/16 B PKH – legally binding
Sufficient prospects of success for the lawsuit – granting of legal aid – coverage of costs for a holiday trip – a trip is only eligible for funding if it involves contact with non-disabled people – social assistance – integration assistance – participation in community life – participation in community and cultural life – promotion of encounters and interaction with non-disabled people (affirmed here)
Integration assistance – holiday trip/vacation trip – promoting contact with non-disabled people
Principle (Juris):
The question of how intensive contact with non-disabled people must be during a holiday trip for the costs to be covered under Section 58 No. 1 of the German Social Code, Book IX (SGB IX), has not yet been definitively settled by the highest court. Therefore, the action has sufficient prospects of success within the meaning of Section 114 of the German Code of Civil Procedure (ZPO).
Source: socialcourtsability.de
Legal tip:
See, for example, Braunschweig Social Court, judgment of February 22, 2012 – S 32 SO 140/10; Thuringian Higher Social Court, judgment of May 23, 2012, file no. L 8 SO 640/09; Hamburg Higher Social Court, judgment of November 20, 2014, file no. L 4 SO 31/12
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – SG Aachen, Judgment of 09.08.2016 – S 20 SO 28/16
Use of a home emergency call system – Section 61 Paragraph 1 Sentence 1, Paragraph 2 Sentence 1 SGB XII.
Principle (Editor)
1. The use of the necessary home emergency call system was not limited to the benefits of the long-term care insurance fund, because unlike in the area of assistance in case of illness, the provisions of Chapter Seven of the German Social Code, Book XII (SGB XII) do not contain any limitation on the scope of assistance provided by the social welfare agency to the benefits of statutory long-term care insurance with regard to assistance for care (cf. Social Court Karlsruhe, judgment of 16 April 2015 – S 1 SO 1636/14).
2. Any remaining uncovered expenses for the installation of a home emergency call system after benefits have been paid by the statutory long-term care insurance are to be covered in accordance with Section 61 Paragraph 1 Sentence 1, Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII).
Source: socialcourtsability.de
6.2 – Aachen Social Court, Judgment of 09.08.2016 – S 20 SO 165/15
Nigerian nationals are entitled to assistance for living expenses and in case of illness, as well as assistance in case of pregnancy.
Guiding principle (Editor):
In principle, due to the employment-centered nature of the German Social Code, Book II (SGB II), the allocation of benefits to the social security system means that anyone who is to be excluded from the SGB II benefit system, which is geared towards taking up employment, is assigned to the SGB XII system. Based on this principle, the Federal Social Court (BSG) has already expressly ruled for other benefit exclusions regulated in Section 7 of the SGB II that the "application bar" of Section 21, Sentence 1 of the SGB XII does not apply.
Source: socialcourtsability.de
6.3 – SG Mannheim Judgment of 2 August 2016 – S 9 SO 3871/15
Regarding the requirements for an administrative procedure for the approval of a personal budget.
Principle (Juris):
The prior conclusion of a budget agreement is not a substantive requirement for the approval of a personal budget. Rather, it is the responsibility of the benefit provider to include the content of the missing budget agreement as a supplementary provision in the approval notice.
Legal tip: a. A. and note from the court:
With this construction, the Social Court, in order to guarantee effective legal protection (Art. 19 para. 4 GG), also takes into account the fact that, according to the case law of the lower courts, the right to conclude a target agreement is not enforceable in court (see, for example, Social Court Aachen, judgment of 11 September 2015 – S 9 SO 126/13) or that the court is not called upon to replace the missing target agreement with its judgment (see, for example, Social Court Halle, judgment of 7 January 2015 – S 24 SO 135/12) or that an action for performance is not suitable to compel the conclusion of a target agreement (see, for example, Social Court Dresden, judgment of 22 November 2013 – S 42 SO 168/11).
In summary, it must therefore be stated that, despite the lack of a target agreement, the plaintiff had sufficient standing to sue or a grievance (§ 54 para. 1 sentence 2 and para. 2 sentence 1 SGG) or that the admissibility of the action cannot be opposed by arguing that the plaintiff should have first sued for the conclusion of a target agreement.
Source: lrbw.juris.de
7. Decisions concerning the German Social Code, Book II (SGB II), parental allowance, child benefit, cost law and other areas of law
7.1 – Federal Constitutional Court, decision of July 5, 2016 – 1 BvR 979/12 – unemployment benefit – and the requirement of timely accessibility
Source: www.rechtslupe.de
7.2 – No waiver of child benefit repayment due to breach of duty to cooperate – Düsseldorf Tax Court, judgment of 7 April 2016, 16 K 377/16 AO.
A family benefits office is not obligated to grant a waiver of child benefit repayment if the person entitled to child benefit has previously breached their duty to cooperate (failure to submit a school certificate) and therefore a materially flawed but legally binding repayment order has been issued.
Practical note: Appeal proceedings.
The case demonstrates that breaches of cooperation obligations can later preclude a discretionary waiver. The tax court granted leave to appeal due to the fundamental importance of the legal issue (case number at the Federal Fiscal Court: VR 22/16).
Düsseldorf Tax Court, Judgment of April 7, 2016, 16 K 377/16 AO
Source: www.haufe.de
7.3 – Social Court Karlsruhe, decision of 02.08.2016 – S 1 KO 2507/16
Reimbursement of travel expenses for participation in oral proceedings may also be possible if the journey originates from a location further away than the place of summons.
Source: socialcourtsability.de
7.4 – LSG Baden-Württemberg Judgment of 21 June 2016 – L 11 EG 1547/15
Principle (Juris): If
a plaintiff objects solely to the fact that the agency responsible for granting parental allowance (defendant) has deducted a specific amount from the parental allowance claim in order to satisfy a reimbursement claim of the basic income support provider (intervenor) due to simultaneously granted basic income support benefits, the defendant must already examine in the administrative proceedings to what extent the temporal congruence of the benefit and the identity of the person entitled to the benefit of the secondary and the primary social benefit, as required for a reimbursement claim under Section 104 of the German Social Code, Book X (SGB X), exist (cf. Federal Social Court [BSG] 12 May 2011, B 11 AL 24/10 R, SozR 4-1300 § 107 No. 4).
Source: socialcourtsability.de
7.5 – SG Heilbronn: Job center must cover costs for email applications
Source: www.stimme.de
Legal tip:
Social Court Berlin, judgment of April 14, 2015 - S 43 AS 6331/14 - Costs for handwritten applications must also be reimbursed, an article by attorney Kay Füßlein, Berlin: www.ra-fuesslein.de
7.6 – Harald Thomé on Twitter: Job centers should tighten Hartz IV controls: BA demands checks also on families of the unemployed.
Source: twitter.com
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
