1. Decisions of the Federal Social Court on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 26.07.2016 – B 4 AS 54/15 R
Basic income support for job seekers – consideration of income – combination of earned income from self-employment with pocket money from federal voluntary service – allowances
Guideline (Editor):
The allowances for earned income and those for pocket money may not be combined.
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 23.06.2016 – B 14 AS 30/15 R
Termination of unemployment benefit II – Failure to fulfill obligations under the integration agreement – Obligation to make job applications without a provision for the reimbursement of application costs – Social law administrative procedure – Public law contract – Exchange contract – Nullity
No agreement regarding job application efforts without an agreement on the reimbursement of application costs.
Guiding principle (Editor):
The authority may not reduce unemployment benefit II due to "failure to make job applications" if it has not specifically promised the unemployed person in an integration agreement that it will cover all application costs.
Source: juris.bundessocialgericht.de
1.3 – BSG, Judgment of 15.06.2016 – B 4 AS 41/15 R
Revocation of unlawful grants of unemployment benefit II – Failure to declare gambling winnings – Consideration of income – No deduction of gambling stakes – Impossibility of determining or estimating the amount of income – Burden of proof placed on the benefit recipient
Guiding principle (Editor):
Gambling winnings are almost entirely counted as income for recipients of Hartz IV benefits. Only the stake for the specific winning game can be deducted; the winnings are generally considered a one-off payment and must be spread over a reasonable period.
Source: juris.bundessocialgericht.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Baden-Württemberg State Social Court, Judgment of 22 September 2016 – L 7 AS 3613/15
The obligations to cooperate under Section 60 Paragraph 1 of the German Social Code, Book I (SGB I) may also include providing information or details concerning a third party, insofar as this is relevant for granting the requested benefit (see, among many others, the Federal Social Court (BSG), decision of February 25, 2013 – B 14 AS 133/12 B).
The job center's (JC) decision to refuse benefits is unlawful because the plaintiff did not violate her duty to cooperate by not providing information about her partner's income and assets, and because the JC did not properly comply with its legal obligation to provide information.
The Senate leaves open the question of whether the JC's decision is also unlawful due to a violation of Section 66 Paragraph 3 of the German Social Code, Book I (SGB I), because the reference to the consequences in the event of the fruitless expiry of the deadline in the letter, which merely reproduces the wording of the law, does not meet the requirements of the highest court's jurisprudence for a proper instruction on legal consequences (cf. Saxony Higher Social Court, judgment of May 23, 2013 – L 7 AS 804/12; in contrast, recently Lower Saxony-Bremen Higher Social Court, judgment of September 23, 2015 – L 13 AS 170/13 –, appeal pending before the Federal Social Court (B 4 AS 52/15 R)).
Guiding principle (Editor)
1. The applicant for benefits may also be obliged to provide information relevant to the benefit that concerns a third party.
2. However, this obligation does not extend to requiring the applicant to obtain and submit evidence – such as proof of income – from the partner or other third parties.
3. Particularly when the income and assets of the partner are at issue and the partner has already declared that they will not provide any information on this matter, the applicant for benefits can at most be required to provide approximate information about the amount of any income or assets of the partner. However, this in turn presupposes that it is established that the applicant possesses the corresponding factual knowledge, as they do not have to acquire such knowledge themselves (BSG, decision of February 25, 2013, loc. cit.; LSG Berlin-Brandenburg, judgment of April 26, 2012 – L 18 AS 2167/11).
Source: socialcourtsability.de
2.2 – Hessian State Social Court, decision of 29.09.2016 – L 9 AS 427/16 B ER
Basic income support for job seekers – Exclusion of benefits for foreigners residing in Germany for the purpose of job seeking – Social assistance – Exclusion of benefits pursuant to Section 23 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) – Granting of benefits pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) – No reduction of discretion to zero after a stay of more than six months
Social assistance for EU citizens seeking employment: The Hessian State Social Court (LSG Hessen) also opposes rulings by the Federal Social Court (BSG).
No benefits under Chapter Three of the German Social Code, Book XII (SGB XII) for Polish nationals.
Principle (Editor):
The entitlement to social assistance of EU citizens who are excluded from receiving unemployment benefit II (ALG II) under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II), is limited, according to Section 23 Paragraph 3 Sentence 1 and Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII), to a discretionary decision by the social assistance provider that is free from error and dependent on the circumstances of the individual case, even if they have resided in Germany for more than six months. Contrary to the case law of the Federal Social Court (BSG) (Judgment of December 3, 2015, Case No. B 4 AS 44/15 R), there is no automatic obligation, beginning with the seventh month of residence, to grant ongoing benefits in accordance with Chapter Three of the SGB XII by reducing the discretion to zero.
Source: socialcourtsability.de
Legal tip:
See also: Senate decision of September 26, 2016 – L 9 AS 643/16 B ER, not published and LSG NSB, decision of March 7, 2016 – L 15 AS 185/15 B ER; contra: North Rhine-Westphalia State Social Court, decision of May 23, 2016 – L 20 SO 139/16 B ER
2.3 – Lower Saxony-Bremen State Social Court, Judgment of 16 December 2015 – L 15 AS 159/14
Regarding the rent ceilings and the requirements for the realistic determination of the abstractly reasonable accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 SGB 2 in the city of Osnabrück.
Principle (Juris):
Determining average rents for the purpose of creating a coherent concept without including existing rents, and solely by referring to publicly advertised apartments, leads to a higher appropriate gross rent excluding utilities, which benefits benefit recipients, and is therefore covered by the freedom of methodology granted to basic income support providers according to the case law of the Federal Social Court (Judgment of 19.10.2010 – B 50/10 R -).
Source: socialcourtsability.de
2.4 – Saxon State Social Court, decision of 20 September 2016 – L 7 AS 155/15 NZB – legally binding
Basic income support for job seekers – consideration of income – provisional benefits due to income fluctuations – final determination of benefits taking into account a monthly average income – Section 41a Paragraph 4 SGB II (in its current version as of August 1, 2016) – no deduction of general "standby costs" for car wear and tear – flat-rate travel allowance from the employer is considered income
Principle (Juris)
1. General standby costs for the wear and tear of a motor vehicle are not expenses within the meaning of Section 11b Paragraph 1 Sentence 1 No. 5 SGB II.
2. Doubts about the legislative intent to allow an average monthly income for the final needs assessment during the benefit period, as stipulated in Section 2 Paragraph 3 of the former version of the German Social Code, Book II (SGB II), have been dispelled since the Ninth Act Amending the SGB II came into force.
Source: socialcourtsability.de
Note:
The following legal question is pending before the Federal Social Court (BSG) under file number B 14 AS 18/16 R.
Lower court: LSG Erfurt, L 4 AS 1310/15
When making the final decision on benefits pursuant to Section 40 SGB II in conjunction with Section 328 Paragraph 3 SGB III, may an actual average income be used as a basis, deviating from the accrual principle, on the legal basis of Section 2 Paragraph 3 Sentence 1 AlgIIV 2008?
2.5 – Saxon State Social Court, decision of 20.09.2016 – L 7 AS 774/16 B ER – legally binding
Regarding the legality of an administrative act replacing an integration agreement (here denied) – validity period of the integration agreement § 15 para. 1 sentence 3 SGB II aF – lack of discretionary decision – order of the suspensive effect of the objection – no doubts exist as to the constitutionality of § 15 para. 1 sentence 6 SGB II
When deciding on the validity period of an integration agreement (§ 15 para. 1 sentence 1 SGB II – EGV) and the administrative act replacing this EGV pursuant to § 15 para. 1 sentence 6 SGB II, the discretion of the job center is bound in accordance with § 15 para. 1 sentence 3 SGB II.
As a rule, authorities must always observe a processing time of six months. Exceeding this deadline without providing specific discretionary reasons is considered unlawful.
Principle (Juris)
1. There are no doubts about the constitutionality of Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II).
2. If a recipient of benefits is required to make job applications as part of the integration administrative act, it is in the interest of a balanced exchange of mutual obligations if the basic benefits
provider agrees to reimburse costs of €5.00 for each written application, up to a maximum of 20 applications per six-month period. 3. The clause "unless otherwise agreed in the meantime" is unambiguous and allows the recipient of benefits the opportunity to conclude a different integration agreement with the basic benefits provider through negotiations before the integration administrative act expires.
Source: socialcourtsability.de
2.6 – Berlin-Brandenburg State Social Court, decision of 26 September 2016 – L 25 AS 1938/16 B ER – legally binding;
application for a preliminary injunction; EU citizen; right of residence solely for the purpose of job seeking; no substantive right of residence; entitlement to social assistance; balancing of interests
The Senate maintains that the jurisprudence of the Federal Social Court (BSG) must be applied to the decision in the preliminary injunction proceedings – 200.00 euros per month from the sale of homeless newspapers
Principle (Editor):
The applicant is to be granted benefits pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII), by way of a balancing of interests (following the case law of the social assistance senates of the Berlin-Brandenburg Higher Social Court (Berlin-Brandenburg Higher Social Court, decision of April 13, 2016 – L 15 SO 53/16 B ER)).
Source: socialcourtsability.de
a. A. LSG Rheinland-Pfalz, decision of 11 August 2016 – file no.: L 3 AS 376/16 B ER; LSG Mecklenburg-Vorpommern, decision of 7 July 2016 – L 9 SO 12/16 B ER; LSG Berlin-Brandenburg, decision of 22 January 2016 – file no.: L 29 AS 20/16 B
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Dortmund, Judgment of 31.03.2014 – S 40 (28, 23) AS 70/09
Social law claim for restitution (affirmed here) – failure to provide advice by the job center – reference to a follow-up application
The benefit provider's obligation to provide timely notification of the need for a follow-up application.
Note from the Court
: 1. It is established in case law that the defendant is obligated to point out the necessity of subsequent applications (Federal Social Court, judgment of January 18, 2011, file no.: B 4 AS 29/10 R). If he fails to provide such information, he may be obligated, based on the social security restitution claim, to provide benefits even before the specific application is submitted.
2. This applies all the more so in cases where a member of a household receiving benefits leaves the household upon reaching the age of 18 due to a now-repealed legal provision and is now obligated to submit their own application to continue receiving benefits. This is supported, on the one hand, by the fact that the group of people affected by the provision are generally represented in administrative proceedings by their legal guardians pursuant to Section 38 of the German Social Code, Book II (SGB II), meaning that they have hardly any contact with the job center before reaching the age of 18, let alone acquired sufficient knowledge regarding their own application process.
Source: www.beispielklagen.de
Legal tip:
See also: Lower Saxony-Bremen State Social Court, judgment of 24 February 2015 – L 7 AS 187/14
3.2 – Social Court Mainz, Judgment of 17 March 2016 – S 15 AS 708/14. nv.
SG Mainz: Jobcenter may have to cover furniture storage costs for a homeless person as an additional hardship allowance according to § 21 para. 6 SGB II (but denied in this case).
Guiding principle (Editor):
1. Furniture storage costs of a homeless person are not to be covered under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), because the storage space is not accommodation within the meaning of the provision.
2. The technical documentation and training materials should be clearly attributable to professional purposes. However, such items are to be excluded from the storage costs covered by Section 22 of the German Social Code, Book II (see Saxon State Social Court, decision of January 24, 2008 – L 3 B 434/06 AS ER; North Rhine-Westphalia State Social Court, decision of January 6, 2011 – L 19 AS 1591/10 B).
3. However, the storage costs incurred here generally constitute an additional need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) (the additional need incurred by the plaintiff was not unavoidable within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II – it was reasonable for the applicant to sell some high-quality furniture).
4. The storage costs constitute a special need. This refers to needs that are not already covered by the standard allowance, but rather exceed average needs due to atypical circumstances or are not covered by the standard allowance due to their atypical nature. In the Chamber's opinion, the costs incurred here are initially considered standard allowance expenses. According to Sections 5 and 6 of the Standard Allowance Determination Act, interior furnishings, household appliances, and household items are considered relevant to the standard allowance in Section 5.
5. The requirement of inescapability is not met if the need cannot be satisfied in any other way. This is the case, for example, when reasonable alternative courses of action exist (cf. regarding the previous legal situation, Federal Social Court, judgment of June 1, 2010 – B 4 AS 63/09 R). In particular, potential cost savings should be considered here.
3.3 – SG Leipzig, decision of 19.09.2016 – S 10 AS 1910/16 ER
Coherent concept for the city of Leipzig (with doubts, left open)
Principle (Juris):
When determining rent ceilings, it must be ensured that living space of basic standards and appropriate size is actually available for all households in need.
3.4 – Dessau-Roßlau Social Court, Judgment of 14 June 2016 – S 13 AS 1257/14
Regarding the question of whether the administrative regulation of the Wittenberg district for granting benefits for accommodation and heating according to the Social Code (SGB) Book Two and Book Twelve (II and XII) is based on a coherent concept (here answered in the negative) - not the entire Wittenberg district can be considered the relevant comparison area
Failure to meet the requirements for a coherent concept of the basic income support provider
Guiding principle (Editor)
Basic income support for job seekers: Costs of accommodation; Requirements for a coherent concept for determining the appropriateness of accommodation costs in the district of Wittenberg.
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Asylum Law
4.1 – Lower Saxony-Bremen State Social Court, decision of 23 September 2016 – L 8 AY 24/16 NZB
Legal norms: Section 44 SGB I, Section 291 BGB – Keywords: Interest on back payment claims, AsylbLG, leave to appeal
Note to the Court:
The legal question of whether benefits under the Asylum Seekers' Benefits Act (AsylbLG) are subject to interest in the case of back payments requires clarification. However, Section 44 of the German Social Code, Book I (SGB I) is not directly applicable, as the AsylbLG is not part of the SGB (cf. Section 68 SGB I) and Section 44 SGB I is not among the provisions whose corresponding application is legally mandated within the framework of the AsylbLG (cf. Section 9 Paragraph 3 AsylbLG in the version applicable since March 1, 2015; Section 7 Paragraph 4 AsylbLG in the version applicable until February 28, 2015). An analogous application of Section 44 SGB I is also unlikely due to the absence of an unintended regulatory gap (cf. regarding the requirements for an analogy: Federal Social Court (BSG), Judgment of July 23, 2015 – B 8 SO 7/14 R – juris para. 16). However, it is unclear whether a claim for interest can arise from the analogous application of Section 291 of the German Civil Code (BGB). The Federal Social Court (BSG) has not yet ruled on this legal question, as far as can be ascertained. Several appeals on this matter ended with the parties reaching a settlement agreement on the payment of statutory interest (Section 291 BGB) (BSG, Report No. 53/13 of October 30, 2013, concerning cases B 7 AY 8/12 R, B 7 AY 1/13 R, and B 7 AY 2/13 R). Furthermore, the BSG assumes that, at most, a claim for statutory interest can exist within the scope of application of the Asylum Seekers' Benefits Act (AsylbLG) (BSG, Judgment of October 30, 2013 – B 7 AY 2/12 R – juris para. 31), but the legal situation in this respect has not yet been clarified. In particular, it is not apparent that a claim for interest on arrears is now recognized in social court case law (rejecting a claim for interest: Schleswig-Holsteinisches LSG, judgment of November 26, 2014 – L 9 AY 70/12 – juris Rn. 61).
Source: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen:
www.anwaltskanzlei-adam.de
5. Miscellaneous information on Hartz IV and other legal codes
5.1 – Social welfare recipients fear rent chaos in the Kleve district:
5.2 – Investigating on suspicion
New regulations govern fine proceedings against recipients of Hartz IV benefits. According to these regulations, job centers have similar powers to a public prosecutor.
By Susan Bonath
When it comes to comprehensively spying on recipients of Hartz IV benefits, the Federal Employment Agency (BA) spares no effort. The mammoth agency has now published 75 pages of "Technical Instructions" for Sections 63 and 64 of the Second Book of the German Social Code (SGB II), which govern fines.
The paper, titled "The Fine Procedure under the German Social Code, Book II (SGB II)," predated to October 20, was published on Monday by social law expert Harald Thomé. It documents how meticulously and rigidly job centers proceed against those living at the subsistence level, starting from the age of 14 – even against people who are known or suspected to have financial ties to them. All that is required is the accusation of inadequate "cooperation." Remarkably, everything happens within the same building: The job center is responsible for "establishing" the suspicion of "administrative misconduct," conducting further "investigations," and setting the fine.
According to the plan, the case workers responsible for the individuals concerned are to identify "suspected cases" and forward them to the in-house processing unit for administrative offenses. The latter is to be supplied with the client's documents and monthly automated data comparisons by the former. This includes checking account and registration data as well as financial or postal transactions with external authorities. These could be the tax office, the land registry, the child benefit office, or the pension insurance provider.
Continue reading: www.jungewelt.de
See also:
Everything under one roof at the job center: Suspect, investigate, punish. On the increasing asymmetry between alleged "clients" and the agency, an article by Stefan Sell: aktuelle-sozialpolitik.blogspot.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
