1. Decisions of the state social courts on basic security for job seekers (SGB II)
1.1 – State Social Court of Saxony-Anhalt, decision v. May 18, 2016 – L 5 AS 168/16 B ER – legally binding
Guiding principle (Juris)
1. The objection to a decision denying benefits according to SGB II in the event of a lack of cooperation in the pension application process has a suspensive effect.
2. Because an application for advance payments can be submitted to the pension insurance provider, the reason for issuing an interim order in the procedure aimed at granting benefits in accordance with SGB II is generally not applicable.
Source: socialcourtsability.de
1.2 – State Social Court of Saxony-Anhalt, decision of. August 16, 2016 – L 4 AS 225/16 B ER – legally binding
To cover accommodation costs if you only occasionally use your own living space (here affirmative).
Guiding principle (Juris)
1. The question of whether a rental apartment is actually used to the extent that the costs incurred justify a need within the meaning of Section 22 Paragraph 1 SGB II, depends on the current actual circumstances in the procedure for interim legal protection a forecast for the disputed – future – performance period. The conditions in the (recent) past have at most circumstantial significance.
2. The assumption of a sufficient scope of use does not fundamentally contradict the fact that the beneficiary has (also) responded to a relevant legal dispute with the SGB II service provider by currently intensifying the use of the apartment.
Source: socialcourtsability.de
1.3 – Hessian State Social Court, decision v. 08/24/2016 – L 6 AS 487/13
Guiding principle (Juris)
The standard set by the legislature as a guarantee of a humane minimum subsistence level may not be interfered with without a legal basis. An analogous application of the sanction provision of Section 31 Paragraph 1 S 1 No. 1 Letter b SGB II in the version valid until March 31, 2011 to a violation of an administrative act replacing an integration agreement is ruled out.
Source: socialcourtsability.de
1.4 – State Social Court of North Rhine-Westphalia, judgment of 08/25/2016 – L 7 AS 432/15
Approval of a rental deposit as a subsidy instead of a loan-like approval (here negative)
Guiding principle (editor)
1. In the absence of atypical circumstances, in accordance with Section 22 Paragraph 6 Sentence 3 SGB II, the job center is not obliged to provide services as a subsidy or to exercise discretion.
2. Neither an expected long-term receipt of benefits nor the lack of own funds nor the expected offsetting according to Section 42a SGB II constitute an atypical situation here.
3. The Senate has no constitutional objections to the granting of benefits in the form of a loan to cover a rental deposit.
Source: socialcourtsability.de
1.5 – State Social Court of North Rhine-Westphalia, decision v.
September 12, 2016 - L 7 AS 1605/16 B - legally binding Guiding principle (editor)
If the beneficiary objects to a request to report in accordance with Section 59 of the SGB II in conjunction with Section 309 of the Third Book of the Social Code (SGB III), this is a lawsuit that is in Within the meaning of Section 144 Paragraph 1 Sentence 1 No. 1 SGG concerns a monetary, service or benefit in kind or an administrative act aimed at this (see judgment of January 29, 2015 - L 7 AS 1306/14).
Source: socialcourtsability.de
Legal tip:
a. A. Thuringian State Social Court, decision of. June 20, 2016 – L 9 AS 318/16 B
1.6 – LSG North Rhine-Westphalia, resolution of September 2, 2016 (ref.: L 19 AS 1085/16 B):
Principle Dr.
Manfred Hammel 1. The administrative act that replaces an integration agreement (Section 15 Paragraph 1 Sentence 1 SGB II) (Section 15 Paragraph 1 Sentence 6 SGB II old version - Section 15 Paragraph 3 Sentence 3 SGB II new version). ) resulting regulation on the efforts to be made by an employable beneficiary who is able to work is unlawful if it only describes the work obligation of a beneficiary resulting from Section 2 SGB II (principle of demands) without the job center also taking the individual responsibility at this point The conditions of the Alg II receiver are taken into account in more detail.
2. Officially, individual, concrete and binding service offers for integration into work must always be included as fundamentally necessary components of such an order.
3. A lack of the information in Section 15 Paragraph 1 Sentence 2 No. 2 SGB II a. F. (Section 15 Paragraph 2 Sentence 2 No. 2 SGB II new version) required specification of the obligation to implement one's own efforts leads to this administrative act being viewed as not sufficiently determined in terms of content within the meaning of Section 33 Paragraph 1 SGB X is.
4. From the job center there are z. B. the frequency of application efforts to be demonstrated to the SGB II provider by persons entitled to benefits, the type of applications (written, digital, telephone) and the existing reasonableness criteria (application for jobs subject to social insurance contributions, for temporary employment agencies, for minor, semi-skilled and unskilled jobs) to be described in more detail.
1.7 – Hamburg State Social Court, judgment of July 7, 2016 – L 4 AS 123/15
Cancellation and reimbursement of SGB II benefits – reversal of the burden of proof – storage of account statements – cooperation (here legal)
Guiding principle (editor)
1. The objective burden of proof of the legality of the cancellation and the claim for reimbursement generally lies with the job center. In the present case, however, there is a reversal of the burden of proof. The Federal Social Court recognized this for actual cases in which the opponent of the party burdened with the evidence had thwarted or made it more difficult to provide evidence or in which the evidence was impossible because the facts to be proven took place in the area of the opponent and the opponent did not participate in the clarification of the facts that was possible for him (Judgment of September 10, 2013, B 4 AS 89/12 R).
2. It is true that the plaintiff is not obliged to keep his bank statements. However, in the event that a fact cannot be proven, this means that the plaintiff bears the burden of proof in this regard and the non-provability is at his expense.
Source: socialcourtsability.de
Legal tip:
See section 45 paragraph 2 sentence 3 SGB X, a reversal of the burden of proof is justified - LSG Baden-Württemberg, judgment of. March 7, 2016 – L 1 AS 296/15; BSG, judgment of June 15, 2016 – B 4 AS 41/15 R, Rz. 30-31 – Burden of proof decision at the expense of the beneficiary
1.8 – Bavarian State Social Court, decision v. 09/02/2016 – L 16 AS 144/16 NZB
On the question of whether an operating cost credit should only be credited in the month after the repayment.
Any operating cost credit that exceeds a monthly rental payment must be spread over several months by offsetting it.
Guiding Principle (Editor)
1. This question does not represent an unresolved legal question
2. The BSG assumes that the operating cost credit is fully credited, since the purpose of the law is to take full account of income. For amounts that exceed a monthly rental payment, this can only be achieved by crediting them over several months. This also corresponds to the clear wording of the regulation. The judgment of May 16, 2012, B 4 AS 132/11 R confirms this opinion.
Source: socialcourtsability.de
Legal tip:
See also Thuringian State Social Court, judgment of July 20, 2016 - L 4 AS 225/14 - legally binding - If the credit - as here - exceeds the expenses of the following month, the excess amount will be credited until the total repayment amount is completely reduced in the following months.
2. Decisions of the social courts on basic security for job seekers (SGB II)
2.1 – Düsseldorf Social Court, judgment of
09.09.2016 - S 29 AS 4295/13 Interest from victim compensation payments is not counted as income.
Guiding principle (editor)
1. The monthly basic pension according to the OEG in conjunction with the BVG is not to be taken into account in accordance with Section 11a Paragraph 1 No. 2 SGB II. The same applies to the additional payment of the basic pension.
2. The interest on the basic pension paid in arrears in accordance with Section 44 of the Social Code, First Book - General Part (SGB I) is also not to be taken into account as income.
3. Section 11a SGB II aims to privilege certain income for systematic or socio-political reasons. The basic pension is privileged according to the OEG in conjunction with the BVG in accordance with Section 11a Paragraph 1 No. 2 SGB II for social policy reasons. The OEG benefits have a special status because they represent compensation for the impairment of physical integrity and are intended to compensate for additional expenses that the injured party has as a result of the injury compared to a healthy person (cf. BSG, judgment of October 17, 2013, B 14 AS 58/12 R mwN).
4. If the main benefit is privileged, this must also apply to the interest (cf. Baden-Württemberg State Social Court, judgment of June 21, 2016, L 9 AS 4918/14). In the present case, the interest resulted from OEG benefits, which are privileged.
Source: socialcourtsability.de
2.2 – Munich Social Court, court decision v.
August 10, 2016 - S 13 AS 2433/14 - legally binding dispute over the legality of a cancellation notice
Guiding Principle (Juris)
1. There are also formal requirements for a lawful instruction on legal consequences. If there is a reduction of at least 60 percent of the relevant standard requirement, the service provider must make a decision as to whether the rent will be transferred directly to the landlord. (official motto)
2. An instruction on legal consequences does not fulfill its warning function if it is formally written in a font size that is significantly below the font size of the rest of the letter.
3. A decision on the direct transfer in accordance with Section 31a Paragraph 3 Sentence 3 SGB II is required. The deviation from the norm must be justified. (Guideline of the court)
4. The social protection purpose from which the requirements for the legal consequences are derived typically plays an even greater role in social benefits that ensure a living, such as those of basic security for job seekers, than in the classic benefits of employment promotion law. (editorial principle)
Source: socialcourtsability.de
2.3 – SG Würzburg, decision by. September 22, 2016 – S 16 AS 391/16 ER
Interim legal protection - Unemployment benefit II - Accommodation and heating - Loans for electricity debts - Energy cost arrears - Blocked electricity connection - Installment payment agreement with the energy supplier was not adhered to by the applicant - Underage child in the household - Weighing up the consequences
Regarding the question of interim legal protection, whether electricity debts are to be taken over by the job center on a loan if these were called in by the applicant due to non-compliance with the installment payment agreement with the energy supplier and the electricity connection is blocked.
Guiding principle (editor)
1. A debt assumption in accordance with Section 22 Paragraph 8 Sentence 2 SGB II can only take place if this is objectively suitable for securing the currently occupied apartment as long-term and permanent accommodation, the beneficiary has exhausted his reasonable self-help options and is also threatened with homelessness (LSG Saxony-Anhalt, decision of February 17, 2016 – L 4 AS 345/15 B ER).
2. Here the blocking has not only been announced, but has already been implemented. In any case, this corresponds to the situation of the community of needs (BG) of the branch. with a minor child experiencing homelessness i. S.v. § 22 Paragraph 8 Sentence 2 SGB II (cf. decision of the LSG NRW, dated May 25, 2016 - L 7 AS 580/16 B ER).
3. The stated termination of the lease by the landlord of the branch. does not stand in the way of granting a loan, because the branch. and his daughter cannot be relegated to having to go without electricity.
4. Since there is already a power cut, a change of provider does not seem likely at this point (see SG Berlin, decision of December 29, 2015 - S 37 AS 26006/15 ER).
5. Since a minor child lives in the household, a supply of electricity must be ensured as part of the assessment of the consequences, in particular to ensure lighting in the dark season and the preparation of meals.
Source: Attorney Volker Albrecht, specialist lawyer for social law, law firm Hörnlein & FeylerKasernenstraße 14, D-96450 Coburg
2.4 – SG Mainz, court decision from June 14, 2016 – S 14 AS 57/16
Effect of the announcement of an administrative act by fax on the deadline for bringing an action
There is no established case law on the question of whether a fax triggers the fiction of delivery.
Guiding principle (Juris)
The notification fiction of Section 37 Paragraph 2 Sentence 2 SGB X does not apply to an administrative act transmitted by fax. This is not an electronic announcement but rather a written announcement in another way. This must be taken into account when calculating the deadline for filing a lawsuit (Section 87 (2) SGG). Since the question is currently being judged differently, it is prudent as a lawyer to file the lawsuit within one month of the announcement by fax.
Source: www2.mjv.rlp.de
Legal tip:
Likewise: SG Berlin, judgment of January 28, 2016 - S 26 AS 26429/14
2.5 – SG Mainz, judgment by. August 23, 2016 – S 4 AS 921/15
Hartz IV recipients must claim the compulsory portion from the Berlin will.
Guiding principle (editor)
1. In the case of a Berlin will, a “Hartz IV” recipient must assert his claim to a compulsory portion after the death of the first deceased if there is sufficient cash to pay out the excluded heir.
2. In the case of a Berlin will, the job center cannot in principle require a benefit recipient to assert their claim to a compulsory portion. This is not reasonable because it would undermine the expressly agreed wishes of the parents. However, an exception applies if there is sufficient cash to pay out the excluded heir without, for example, having to sell or mortgage a property.
Source: Press release from SG Mainz No. 13/2016 v. September 27, 2016: www2.mjv.rlp.de
Legal tip:
BSG, judgment of May 6, 2010, B 14 AS 2/09 R - The realization of a claim to a compulsory portion resulting from a Berlin will means particular hardship if the claim can only be realized through an unreasonable economic burden on the beneficiary parent .
2.6 – SG Dortmund, judgment by. September 19, 2016 – S 19 AS 1803/15
Hartz IV: Limitation of benefits due to unreasonable housing costs for homeowners only after prior request to reduce costs
Guiding principle (editor)
The job center must bear the costs of replacing a defective gas heater, regardless of the question of the appropriateness of the housing costs, if it has not previously sent the long-term unemployed homeowner a request to reduce costs.
Source: Press release from SG Dortmund v. 09/26/2016
Legal tip:
BSG, judgment of September 18, 2014, B 14 AS 48/13 R - Unavoidable expenses for the repair or maintenance of owner-occupied residential property are to be recognized as a need for accommodation even before January 1, 2011 and, subject to a cost reduction request, not to be increased the reasonable expenses are limited - a request to reduce costs is also required for apartment owners.
The current version of Section 22 Paragraph 2 SGB II came into force on January 1st, 2011. However, the entry into force of Section 22 Paragraph 2 Sentence 1 SGB II has not changed the requirement for a request to reduce costs (as does Krauß, in: Hauck/Noftz, SGB II, Vol. 2, 50th supplementary delivery October 2012, § 22 Rn. 188; left open by the Social Court [SG] Leipzig, decision of January 21, 2016, p. 22 AS 4239/15 ER).
Full text of the decision: Sozialgerichtsbarkeit.de
2.7 – Karlsruhe Social Court, court decision v. August 26, 2016 – S 14 AS 3067/15
Learning support, tutoring costs, essential learning goal, special school, § 28 SGB II
To cover the costs of tutoring in mathematics (here negative) – attending special school due to dyscalculia
Guiding principle (editor)
1. The plaintiff attends special school because of her dyscalculia. This is primarily responsible for providing needs-based support in the area of mathematics.
2. Only if the essential learning goal is jeopardized/not achieved through school support alone can learning support within the framework of Section 28 Paragraph 5 SGB II intervene at all. However, the school's support in the area of mathematics was sufficient to achieve the essential learning goals individually defined by the school.
Source: socialcourtsability.de
3. Decisions of the state social courts on employment promotion (SGB III)
3.1 – Hamburg State Social Court, judgment of June 29, 2016 – L 2 AL 57/15
To approve a start-up grant (here negative) – exercise of discretion – reduction of discretion to zero
Guiding principle (editor)
1. When deciding on the approval of a start-up grant, the employment agency may, within the scope of its discretion, give priority to the placement of dependent employment relationships over the promotion of setting up an independent business.
2. In the case of a claim according to § 57 SGB III old version, a discretionary reduction can generally only be accepted if a self-commitment can be made in individual cases either through a corresponding verbal promise (cf. SG Regensburg, judgment of December 18, 2013 - S 16 AL 38 /12) has occurred or if the self-employment undertaken by the plaintiff is the only measure with which permanent professional reintegration could be achieved (LSG Baden-Württemberg, judgment of February 24, 2015 - L 13 AL 1924/ 14; LSG Berlin-Brandenburg, decision of January 17, 2013 - L 18 AL 5/13 B ER).
Source: socialcourtsability.de
4. Decisions of the state social courts on social assistance (SGB XII)
4.1 – Hamburg State Social Court, judgment of 09/01/2016 – L 4 SO 49/15 ZVW
§ 34 Para. 1 SGB XII a. F. – Direct payment to the landlord – Doubts about the appropriate use of the services (here affirmative) – Section 35 Paragraph 1 Sentence 4 SGB XII
To pay social assistance benefits in the form of assumption of rent debt to the owner of the apartment inhabited by the plaintiff (here negative)
A direct payment of the accommodation costs to the landlord is recommended if there is a real risk that the funds will be used inappropriately.
Guiding principle (editor)
1. Neither Section 34 Para. 1 SGB XII old version nor Section 36 Para. 1 SGB
2. The direct payment of the service to the landlord without the plaintiff's declaration of consent can, however, be based on Section 29 Paragraph 1 Sentence 6 SGB 5 SGB XII (since the version dated March 24, 2011). As a general provision regulating accommodation services, these provisions also apply within the framework of the assumption of rental debts.
3. The background to this regulation is that the security of the accommodation can be at risk if the beneficiary does not pass on the social welfare benefits for the accommodation to the landlord. The regulation must be interpreted restrictively, as it carries the risk of incapacitation of those in need of help or at least the risk of being perceived accordingly by those in need of help (cf. LSG Baden-Württemberg, judgment of October 21, 2011 - L 12 AS 2016/11 ). It is therefore necessary that there is a concrete risk that the information will not be passed on to the landlord.
4. Even with a restrictive interpretation, the requirements for a direct payment to the landlord are met here. The plaintiff's appropriate use of the services was not ensured (existence of rent arrears that entitle the tenant to terminate the rental agreement for cause - Section 35 Paragraph 1 Sentence 4 SGB XII).
Source: socialcourtsability.de
4.2 – Hamburg State Social Court, judgment of 09/01/2016 – L 4 SUN 65/15
Guiding principle (editor)
§ 30 SGB
Source: socialcourtsability.de
4.3 – LSG Schleswig-Holstein, decision of August 15, 2016 (ref.: L 9 SO 124/16 B ER):
Principle Dr.
Manfred Hammel 1. When assessing the personal budget in accordance with Section 17 Paragraph 3 Sentence 3 SGB IX in conjunction with Section 10 Paragraph 1 Sentence 2 SGB IX for the care of a person with a significant mental disability (Section 3 Integration Assistance Ordinance), this is crucial determine which requirement profile the required assistant must meet in detail. It's not just difficulties in carrying out craft activities such as: B. when accompanying people to the shops or to the doctor, but in particular the specifics of the respective clinical picture of the person in need of care are given detailed consideration. This is especially true when someone is affected by a complex, difficult psychiatric illness.
2. In such a case, the required assistance cannot be provided by student assistants or mini-jobbers without specific knowledge and experience, even if the required assistance basically involves simple manual work. For such an assistant, an hourly wage of EUR 13.61 (employer gross) or EUR 15.64 (employer gross) is acceptable.
Note: Federal Constitutional Court supports people with disabilities in the dispute over personal budgets: www.aerztezeitung.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Dortmund Social Court, judgment of September 20, 2016 – S 62 SO 403/16
Basic security for job seekers - social assistance - exclusion of benefits for those entitled to benefits according to SGB 2
Social assistance for EU citizens looking for work: SG Dortmund also opposes the BSG ruling
Guiding principle (Juris)
1. § 21 S 1 SGB 12 also applies to employable Union citizens who are excluded from basic security benefits for job seekers in accordance with § 7 Paragraph 1 S 2 No. 2 SGB 2.
2. The interpretation of § 23 SGB Paragraph 1 S 3 SGB 12, and after a total of six months a discretionary reduction to zero with regard to granting assistance with living expenses to the statutory extent. Such a result seems hardly comprehensible.
3. A right of residence under Section 7 Paragraph 1 Sentence 3 of the Residence Act or Section 25 Paragraph 4 Sentence 1 Residence Act based on an announced marriage presupposes that objective circumstances show that the marriage is imminent, i.e. that the marriage date has been fixed or at least must be bindingly determinable.
4. There is no constitutional objection to the fact that by excluding benefits for EU foreigners who derive their right of residence solely from the purpose of looking for work, the legislature is standardizing the German social benefit system compared to that of the country of origin.
5. Nothing else emerges from the decision of the BVerfG of July 18, 2012 - 1 BvL 10/10 et al = BVerfGE 132, 134 = SozR 4-3520 § 3 No. 2. The situation of an asylum seeker is not the same as that of an EU comparable to citizens. While an asylum seeker who cites political persecution in his home country cannot regularly return to his country of origin, this is fundamentally the case for an EU citizen who has made use of his right to freedom of movement for the purpose of looking for work and has entered the Federal Republic of Germany easily possible.
6. There is only scope for weighing up the consequences in interim legal protection proceedings if the adjudicating body is unable to clarify the factual and legal situation within the time period available in these proceedings.
7. Supreme court judgments are not statutory law and do not create a comparable legal binding. Their claim to validity beyond the individual case is based solely on the persuasiveness of their reasons as well as the authority and competence of the court. Even in interim legal protection proceedings, the case law of the appellate body, which, according to the will of the legislature, is not involved in this procedure, is not to be granted any more binding effect than it otherwise has.
Source: socialcourtsability.de
6. Decisions of the state social courts on asylum law
6.1 – Hamburg State Social Court, judgment of 09/01/2016 – L 4 AY 1/15
On the question of whether the plaintiff should be retroactively granted higher benefits to secure her livelihood in accordance with Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) within the framework of a benefit procedure according to Section 44 Tenth Book of the Social Code (SGB AsylbLG
Guiding principle (editor)
1. According to the case law of the Federal Social Court, additional payment of benefits under the AsylbLG is not possible if the need has now disappeared temporarily or permanently (cf. BSG, judgment of June 9, 2011 - B 8 AY 1/10 R under Appeal to the judgment of September 29, 2009 - B 8 SO 16/08 R; judgment of December 20, 2012 - B 7 AY 4/11 R and judgment of June 26, 2013 - B 7 AY 3/12 R).
2. The plaintiff was no longer in need, regardless of what residence status she had at the time or still has today and which law therefore determines the standard for the means test. According to the AsylbLG as well as SGB , Section 19 Paragraph 1 and Paragraph 2 SGB XII, Section 9 Paragraph 1 SGB II).
3. If the defendant is unable to provide benefits retroactively due to the plaintiff's lack of ongoing need, then, regardless of the question of the legality of the approval decisions that have become final, there is no right to have these approval decisions revoked for the periods in question in accordance with Section 44 Paragraph 1 SGB X (cf. BSG , judgment of September 29, 2009 – B 8 SO 16/08 R).
Source: socialcourtsability.de
6.2 – Bavarian State Social Court, decision v. 09/13/2016 – L 8 AY 21/16 B ER
Unsuccessful complaint against non-granting of benefits under the Asylum Seekers Act - the criteria for the offense in Section 1a Paragraph 3 AsylbLG were not met
Guiding principle (editor)
Provisional legal protection against a restriction of claims according to Section 1a AsylbLG can be sought through an application for an interim order according to Section 86b Paragraph 2 Sentence 2 SGG. The application is aimed at the obligation of the responsible asylum authority to grant unrestricted benefits in accordance with the AsylbLG.
Source: socialcourtsability.de
7. Miscellaneous information about Hartz IV and other law books
7.1 – Refugee crisis and justice “Every state service is subject to reservation” – Interview with the President of the BSG Rainer Schlegel
Refugee crisis and justice
“Every state service is subject to reservations”
The new President of the Federal Social Court, Rainer Schlegel, on refugees, Germany's social standards and its performance as well as cameras in courtrooms.
Read: www.faz.net
7.2 - SGB II Benefits even in the event of a lawsuit against the granting of only subsidiary protection: clarification at the federal level
The Federal Ministry of Labor and Social Affairs (BMAS) has taken a position on the controversial legal question after consultation with the Federal Ministry of the Interior (BMI).
In the case of so-called split authority decisions (e.g. rejection of asylum or refugee and simultaneous recognition of subsidiary protection), the change is triggered by the authority's positive decision (recognition of subsidiary protection). Appeals against the negative part of the authority's decision (e.g. rejection of asylum, rejection of recognition as a refugee) have no impact on the change of legal circle.
This means that in cases where subsidiary protection is recognized, entitlement to benefits under the AsylbLG no longer applies from the end of the month in which the notification was made (receipt of the BAMF decision). Those affected are then entitled to benefits under SGB II.
In this respect, the previous legal opinion of the Federal Employment Agency and the Regional Directorate of Rhineland-Palatinate-Saarland, that when an appeal is lodged, the change of jurisdiction only takes place after the court decision, is no longer applicable. The current legal opinion is to be applied immediately.
If any claims for reimbursement in accordance with Sections 102 ff SGB
Kind regards,
Gerhard Vogt,
head of department 641-2, fundamental questions of social assistance, benefit law SGB II
7.3 Fighting and complaining against the job center – “People at boiling point” – “I would strike if I could”
Source: www.sueddeutsche.de
7.4 – Residence regulations / SGB II: Instructions BMAS, BA – Claudius Voigt, GGUA
Yesterday a circular from the Federal Ministry of Labor / Federal Employment Agency was published, which contains nationwide regulations on the responsibility of job centers in connection with residency requirements according to Section 12a Residence Act. In all cases in which those affected have moved to another location contrary to a residence requirement, at least provisional services must be provided in accordance with Section 43 SGB I, usually for six weeks, or longer in special cases. The amount of the provisional benefits must be “based on the benefits to secure a living according to SGB II”.
“Normal cases” (recognized from October 1st):
From October 1st, newly issued residence permits should contain information about the existence of a residence requirement as standard in the electronic residence permit (eAT) and on a supplementary sheet. If there is no residence requirement noted in the residence permit or on the supplementary sheet for people who are now recognized as being entitled to protection, this does not exist and they are entitled to freedom of movement and benefits nationwide.
“Transitional cases” (recognized between August 6th and September 30th):
If a SGB II application is submitted in a federal state other than the one where the asylum procedure was completed, the job center must ask the immigration authorities whether there is a residency requirement. If the immigration authorities do not respond within four weeks, the “presumption” applies that there is no residency requirement.
“Old cases” (recognized between January 1st and August 5th):
Here, too, the ABH must be requested if an SGB II application is submitted in a federal state other than the one in which the asylum assignment is made. The deadline for a response from the ABH should also be a maximum of four weeks, otherwise it is assumed that there is no residency requirement.
In the event that the move to another federal state took place before August 6, 2016, some federal states have already excluded the “retroactivity” of the residence regulation, to our knowledge so far Lower Saxony and Berlin (p. 106ff); NRW at least “as a rule” if school-age or smaller children would be affected or an integration course has already started. The BMAS expressly refers to the possibility of the federal states to be able to make a blanket regulation in retroactive cases, according to which “the responsible state government has informed the job centers that in old cases it is not necessary to consult the responsible ABH” - i.e. this The residency requirement in the respective federal state automatically expires or is considered changed in retroactive cases.
After a federal-state meeting on September 13th, there was also agreement among all federal states that a case of hardship should always be assumed if someone
“between January 1st, 2016 and August 6th, 2016 (entry into force of the Integration Act) trusts in the continued existence of the in has legally relocated their habitual residence to another federal state in accordance with the legal status applicable at that time; It is assumed that a move back would interrupt an integration that has already begun. The person concerned is subject to a new residence requirement in the federal state in which he or she established his/her residence.”
In this respect, it can reasonably be assumed that, in order to simplify administration, all federal states will use the above-mentioned option of a global decision, according to which the residence requirement cannot be applicable in old cases and a move before August 6th for reasons of protection of legitimate expectations, the principle of proportionality, the best interests of the child, etc .
Speaking of administrative simplification: The BMAS circular contains a test pattern for the job centers, which is intended to be used to determine responsibility in the event of a residence requirement.
7.5 – Access to the labor market and SGB II/III benefits for foreigners
The updated version of the tabular overview of foreigners' access to the labor market and SGB II/III benefits published jointly by the Osnabrück Employment Agency and the Caritas Association fd Diözese Osnabrück eV is now available. The update takes current legal changes into account.
You can download it here: www.nds-fluerat.org
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
