1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Bavarian State Social Court, Judgment of 14.09.2016 – L 16 AS 373/16
Legality of a summons to report – permissible purpose of reporting – 10% sanction – job center's career fair – calculation of standard benefit rates from 01.1.2016 onwards is not objectionable from a constitutional point of view
Guiding principle (Editor)
1. The request to register at the employment agency's stand at the job fair is covered by the reporting purposes mentioned in Section 309 Paragraph 2 of the German Social Code, Book III.
2. The reporting requirements can be met at any location where the basic income support provider's staff performs its duties and is available to receive the report. Neither the reporting requirement nor the protection of the job seeker necessitates restricting the reporting locations to the offices of the basic income support provider (see also: State Social Court of Saxony-Anhalt, judgment of January 24, 2002, L 2 AL 9/00).
Source: socialcourtsability.de
Legal tip:
Different case: Lower Saxony-Bremen State Social Court, judgment of February 10, 2014, L 7 AS 1058/13 B – inadmissible purpose of reporting – attendance at an employer fair of temporary employment agencies
1.2 – Thuringian State Social Court, Judgment of 26 October 2016 – L 4 AS 407/15 – legally binding
Principle (Juris)
1. For the determination of the market value pursuant to Section 12 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), neither the contributions made nor the so-called book value can be used as a basis for investments in fund companies (closed-end funds) if this value cannot be realized at the relevant time.
2. Tradable company shares are to be considered as assets within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II), at their actual market/sale value. To determine whether an asset is uneconomical within the meaning of Section 12 Paragraph 3 Sentence 1 Alternative 1 of the SGB II, a distinction must be made depending on the specific asset.
3. The realization of assets is not considered uneconomical if the loss in value of an asset does not result directly from its premature sale, but rather from the specific risk inherent in the form of investment. Choosing a highly speculative investment that offers no guarantee whatsoever that at least an adequate basic amount will be available for retirement upon reaching retirement age does not imply that the asset is intended for retirement provision. Therefore, the realization of such an asset does not constitute undue hardship for the individual concerned within the meaning of Section 12 Paragraph 3 Sentence 1 Alternative 2 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
1.3 – Lower Saxony-Bremen State Social Court, Decision of June 23, 2016 – L 11 SF 6/16 AB (AS), L 11 SF 7/16 AB (AS), L 11 SF 8/16 AB (AS), L 11 SF 11/16 AB (AS), L 11 SF 12/16 AB (AS), L 11 SF 16/16 AB (AS), L 11 SF 17/16 AB (AS)
Social Court Proceedings – Recusal of a Judge Due to Concerns of Bias – Procedural Errors – Transmission of Files to the Law Firm of the Lawyer – Discretionary Decision of the Court
Principle (Juris)
1. Procedural errors by the challenged judge only give rise to a concern of bias if they reveal an unprofessional or even arbitrary attitude.
2. The transmission of files or the permission to take files is at the court's discretion, even for lawyers. There is no legal entitlement to have the files sent to another location (here: the lawyer's office).
Source: www.rechtsprachung.niedersachsen.de
1.4 – Lower Saxony-Bremen State Social Court, Judgment of 14 December 2016 – L 13 AS 92/15 – The appeal is admitted.
Unemployment benefit II – Special needs – Repair costs of eyeglasses (affirmed here)
Guiding principle (Editor)
: 1. Repair costs for eyeglasses can constitute a special need within the meaning of Section 24 Paragraph 3 Sentence 1 No. 3 of the German Social Code, Book II (SGB II).
2. A claim under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) does not exist, because this provision requires an ongoing need.
1.5 – North Rhine-Westphalia State Social Court, Judgment of 08.12.2016 – L 7 AS 578/15
For increased nutritional needs where a dietary adjustment is necessary.
Abstaining from certain foods represents a restriction in lifestyle, but it does not justify granting additional support.
Principle (Editor)
1. The plaintiff is not entitled to higher benefits taking into account additional needs due to costly nutrition pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II).
2. An elimination diet is deemed necessary, in which certain foods are omitted. In particular, the plaintiff is to avoid processed foods. The additional costs associated with a more expensive diet do not necessarily imply that someone can acquire comprehensive substitute products for those foods they cannot consume due to illness. If necessary, these products must be omitted.
3. While abstaining from certain foods constitutes a restriction in lifestyle, it does not justify granting an additional allowance. Such an allowance is only considered if, without expensive substitute products, health problems are imminent or if there is an insufficient selection of alternative products available. Purchasing products at organic markets or health food stores is understandable, but not necessary for a balanced diet that meets the plaintiff's health needs. The resulting additional expense does not justify granting the additional allowance under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
1.6 – North Rhine-Westphalia State Social Court, Judgment of 06.10.2016 – L 6 AS 328/16
Regarding the duty to provide information pursuant to Section 60 of the German Social Code, Book II (SGB II), Sections 1361, 1580, 1605 of the German Civil Code (BGB)
Even a self-employed lawyer is obligated to provide information to the basic income support provider.
Principle (Editor)
1. According to Section 60 Paragraph 2 of the German Social Code, Book II (SGB II), those obligated to provide information include all those who are legally obligated to provide maintenance based on family law regulations. In this case, the plaintiff's maintenance obligation towards his son is at issue pursuant to Section 1601 of the German Civil Code (BGB). Section 60 Paragraph 2 Sentence 1 of the SGB II provides an independent legal basis for the SGB II benefits agency to request information about the income and assets of anyone who is obligated to provide benefits to a recipient of benefits under the SGB II.
2. The preclusive effect of Section 1605 Paragraph 2 of the German Civil Code (BGB) does not apply here; Section 60 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) expressly refers only to Section 1605 Paragraph 1 of the BGB. Unlike the person obligated to pay maintenance within the meaning of the BGB, the SGB II benefit provider is therefore entitled to demand information at any time if this is necessary.
Source: socialcourtsability.de
1.7 – Berlin-Brandenburg State Social Court, Judgment of 05.10.2016 – L 18 AS 284/15
Success of an objection – Costs of the objection procedure – Lack of justification
Principle (Editor)
1. The Senate does not share the view, partly expressed in the literature (cf. Roos, in von Wulffen, SGB X, 8th ed. 2014, § 63 para. 24), that § 63 para. 1 sentence 2 SGB X should be applied analogously to the cases of § 42 SGB X. As explained above, there is no unintended gap in the law.
2. Extending Section 63 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X) to such case constellations would constitute a systemically inconsistent introduction of causation considerations in the sense of general considerations of equity into the cost decision and would thus contradict the legislative intent (against an extension to Section 42 SGB X, see also Stuttgart Higher Social Court, Thuringian Higher Social Court, decision of August 25, 2011 – L 4 AS 1223/11 NZB; Celle Higher Social Court, decision of May 8, 2012 – L 7 AS 52/11 B).
Source: socialcourtsability.de
Legal tip: a. A. Social Court Chemnitz, judgment of 11.11.2016 – S 33 AS 1347/16 – Section 63 Paragraph 1 Sentence 2 SGB X is, contrary to its wording, also applicable to the cases of Section 42 SGB X.
1.8 – Berlin-Brandenburg State Social Court, Judgment of 09.11.2016 – L 18 AS 26/16
No credit will be given for the business fee incurred in the objection proceedings as part of the cost reimbursement for preliminary proceedings.
Principle (Editor):
A reduction of the business fee claimed for the objection proceedings by a lawyer who was already active in the previous administrative proceedings is inadmissible (similarly Feddern, in Schlegel/Voelzke, jurisPK-SGB X, § 63 Rn 70.4; furthermore Loytved, Commentary on SG Gießen, Judgment of December 12, 2014 – S 29 AS 460/14 -, JurisPR-SozR 9/2015 with further references).
Source: socialcourtsability.de
1.9 – Berlin-Brandenburg State Social Court, Judgment of 13 October 2016 – L 31 AS 1774/16
Claim for exemption – claim for reimbursement of costs – claim for payment
Principle (Juris)
1. The claim for reimbursement of costs under § 63 SGB X is a claim for exemption, not a claim for payment.
2. A job center cannot offset its own claims against the benefit recipient arising from reimbursement notices against a claim for reimbursement of costs by the benefit recipient under Section 63 of the German Social Code, Book X, since the claims are not of the same type.
3. There are no objections to the adoption into social law of the case law of the Federal Court of Justice, according to which claims for exemption cannot be offset against claims for payment.
Source: socialcourtsability.de
Note: See also: Communication from the Berlin Bar Association (RAK Berlin) and the Berlin
Higher Social Court (LSG Berlin): Job centers cannot offset the exemption claim of a recipient of benefits under Book II of the German Social Code (SGB II) against a payment claim.
According to the ruling of the Higher Social Court (LSG), the job center's set-off fails because the plaintiff's claim for exemption against the defendant is not of the same kind as the defendant's claim for reimbursement, and therefore a set-off pursuant to Section 387 of the German Civil Code (BGB) is not permissible. The Berlin Social Court (SG Berlin) had also held this view.
More information: kammerton.rak-berlin.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Kiel Social Court, Judgment of September 27, 2016 – S 40 AS 500/15
Job center must cover double rent – an article by attorney Helge Hildebrandt, Kiel
Moving often means having to pay rent for two apartments – the old one and the new one. The old apartment should only be vacated once the lease for the new one is signed. Otherwise, homelessness is a real risk if the lease falls through later. Recipients of unemployment benefits (ALG II, also known as Hartz IV) frequently have to fight with job centers to get them to cover these unavoidable double rent payments.
In a recent ruling, the Kiel Social Court has once again decided that double rents must be covered by the job center as housing costs if the move was necessary and the benefit recipient has done everything possible and reasonable to avoid double rents or to keep them as low as possible.
More information: sozialberatung-kiel.de
See also the guiding principles of Dr. Manfred Hammel,
Social Court Kiel, judgment of September 27, 2016 (Case No.: S 40 AS 500/15):
1. A claim for consideration of double rent necessarily incurred due to relocation, which increases the need for assistance, does not constitute a claim for recognition of special housing procurement costs pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), but is to be understood as an application for financing of corresponding costs for accommodation and heating pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
2. Housing procurement costs within the meaning of Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) are to be subsumed only those expenses that are directly related to finding and renting an apartment.
3. For employable benefit recipients, the costs of accommodation and heating that continue to arise due to a move are to be recognized by the job center under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), even if the previous apartment is no longer occupied due to eviction at the time of application, provided that the change of residence was necessary and the benefit recipient has done everything possible and reasonable to keep the resulting expenses as low as possible, e.g., actively sought a new tenant and placed classified ads and advertisements for this purpose.
4. If a job center claims that sufficient vacant apartments below the rent ceiling were available at the legally permissible move-out date, this claim must be substantiated by the authorities.
5. Regarding the rental costs incurred during this transition phase, the question of local jurisdiction pursuant to Section 36 Sentence 2 of the German Social Code, Book II (SGB II) is to be assessed according to whose jurisdiction the apartment in question is located.
2.2 – Social Court Dortmund, Judgment of 12.09.2016 – S 32 AS 5367/15 WA
Social assistance for job-seeking EU citizens: Social Court Dortmund also opposes Federal Social Court ruling
Principle (Editor):
Polish nationals are – indisputably – eligible for employment pursuant to Section 21 Sentence 1 of the German Social Code, Book XII (SGB XII), and are therefore excluded from receiving benefits under the SGB XII.
Source: socialcourtsability.de
Legal tip:
The same applies to Bulgarian nationals: SG Dortmund, Judgment No.: S 32 AS 4289/15 WA
Note: See also the guiding principle (Juris)
1. Regarding the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) for "foreigners who are neither employees nor self-employed persons in the Federal Republic of Germany nor entitled to freedom of movement pursuant to Section 2 Paragraph 3 of the Freedom of Movement Act/EU, and their family members for the first three months of their stay".
2. Section 21 sentence 1 of the German Social Code, Book XII (SGB XII) precludes the discretionary granting of benefits under Section 23 paragraph 1 sentence 3 of the SGB XII to employable persons in need who are EU citizens. Section 21 sentence 1 of the SGB XII essentially constitutes a "barrier to application" for employable persons in need with regard to access to benefits under the SGB XII. The principles developed by the Federal Social Court (BSG) regarding the exclusion from benefits under Section 7 Paragraph 4 of the German Social Code, Book II (SGB II) cannot be applied to the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 1 of the SGB II (following the ruling of the Social Court of Dortmund, decision of April 18, 2016 – S 32 AS 380/16 ER – (regarding Section 7 Paragraph 1 Sentence 2 Number 2 of the SGB II); contrary to the rulings of the Federal Social Court of December 3, 2015 – B 4 AS 44/15 R – and of January 20, 2016 – B 14 AS 35/15 R – (also regarding Section 7 Paragraph 1 Sentence 2 Number 2 of the SGB II); following the rulings of the Social Court of Dortmund of February 11, 2016 – S 35 AS 5396/15 ER – and the Higher Social Court of North Rhine-Westphalia of March 7, 2016 – L 12). SO 79/16 B ER -, LSG Lower Saxony-Bremen, decision of 22.02.2016 – L 9 AS 1335/15 B ER – (all also relating to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II)).
3. If benefits under the German Social Code, Book XII (SGB XII) for employable EU citizens were not already excluded due to Section 21 Sentence 1 SGB XII, these persons, if they do not fall under Section 23 Paragraph 3 Sentence 1 Alternative 1 SGB XII, would have a legally binding entitlement under Sections 23 Paragraph 1 Sentence 1, 27 et seq. SGB XII precisely during the first three months of their stay in Germany, because Section 23 Paragraph 3 SGB XII does not contain an exclusion of benefits corresponding to the provision of Section 7 Paragraph 1 Sentence 2 No. 1 SGB II for this period, in which the right of residence under Section 2 Paragraph 5 FreizügG/EU, which is to be distinguished from Section 2 Paragraph 2 FreizügG/EU and is unconditional, in particular not requiring job search, exists. The Federal Social Court's (BSG) interpretation would therefore result in a legally binding entitlement to subsistence assistance for the first three months, an entitlement to a discretionary decision free from error pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) for months 4-6, and from the 7th month onwards, a quasi-entitlement due to the reduction of discretion to zero. Such an outcome – a social welfare "rollercoaster ride" – seems hardly comprehensible (following the reasoning of the Social Court of Dortmund, decision of April 18, 2016 – S 32 AS 380/16 ER).
4. The exclusion from benefits under Section 23 Paragraph 3 Sentence 1 Alternative 1 of the German Social Code, Book XII (entry to obtain social assistance) applies if the motive of obtaining social assistance was so important to the foreigner, alongside other reasons for entry, that they would not have entered otherwise (following the decision of the Higher Social Court of Baden-Württemberg of June 22, 2016 – L 2 SO 2095/16 ER-B). It is sufficient if there is a direct connection between the entry and an initial, but possibly only temporary and not permanent, receipt of social assistance. This must apply at least when – as in this case – it is not concretely foreseeable at the time the decision to enter the country is made that this initial period for which social benefits are needed will end soon because another source of income or financial resources will become available to secure subsistence.
5. The exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) for the first three months of residence does not violate – even taking into account the lack of entitlement to benefits under the German Social Code, Book XII (SGB XII) due to Section 21 Sentence 1 and also Section 23 Paragraph 3 Sentence 1 Alternative 1 of the German Social Code, Book XII (SGB XII) – the fundamental right to a guaranteed minimum standard of living in accordance with Article 1 Paragraph 1 of the German Basic Law. Pursuant to Article 20 Paragraph 1 of the Basic Law (continuation of the decision of the Social Court of Dortmund of April 18, 2016 – S 32 AS 380/16 ER – (regarding Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II); continuation of the decisions of the Social Court of Dortmund of February 11, 2016 – S 35 AS 5396/15 ER –, the Higher Social Court of North Rhine-Westphalia of March 7, 2016 – L 12 SO 79/16 B ER –, the Higher Social Court of Lower Saxony-Bremen of February 22, 2016 – L 9 AS 1335/15 B ER –, the Social Court of Berlin of February 22, 2016 – S 95 SO 3345/15 ER –, and the Higher Social Court of Hamburg of October 15, 2015 – L 4 AS 403/15 B ER – and Munich Higher Social Court, decision of October 1, 2015 – L 7 AS 627/15 B ER – (all also concerning Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II)). For EU citizens, the Freedom of Movement Act/EU and the underlying EU Citizens' Directive have created a system of "privatized" freedom of movement, characterized by the absence of classic immigration-related access control, and specifically designed on the premise that a stay during the first three months – except in cases of employee or self-employed status – and a stay beyond this period solely (or not even) for the purpose of seeking employment does not give rise to an obligation to provide maintenance (following the reasoning of the Dortmund Social Court, decisions of April 18, 2016 – S 32 AS 380/16 ER – and July 20, 2016 – S 32 AS 3037/16 ER –). Since the stay in the first three months is materially lawful without any conditions according to § 2 para. 5 of the Freedom of Movement Act/EU, there can be no talk of a deficit in the enforcement of immigration law during this period.
6. Regarding the requirements for granting leave to appeal directly to the Federal Court of Justice due to divergence – denied here with regard to the crucial consideration that (also) the exclusion of benefits under Section 23 Paragraph 3 Sentence 1 Alternative 1 of the German Social Code, Book XII (SGB XII) applies – and due to fundamental importance – affirmed here – and regarding the court's discretion in granting leave to appeal directly to the Federal Court of Justice.
2.3 – Social Court Dortmund, Judgment of 16 December 2016 – S 19 AS 3947/16 – Appeal allowed
Regarding the question of whether and, if so, under what conditions a withheld consent for absence from the place of residence can be replaced (here answered in the affirmative)
It is an incidental matter to be reviewed within the framework of legal protection against the revocation – or approval decision – whether consent should have been granted (cf. LSG Hessen, 10.10.2013 – L 6 AS 675/13 B ER and Landessozialgericht Sachsen-Anhalt, decision of 12.09.2012 – L 5 AS 378/10 B ER).
Guiding principle (Editor):
1. The decision regarding the (non-)granting of consent must be reviewed incidentally within the framework of the main proceedings against the revocation or approval decision. Only in this way can effective legal protection be guaranteed. Based on this view, the criterion "without the consent of the personal contact person" is not met.
2. Whether the beneficiary has disregarded "basic rules" in the past or is prone to litigation plays absolutely no role in the decision to grant approval. The regulations concerning absence from the place of residence are intended neither as a sanction for non-compliant behavior nor as a reward for compliant behavior. Furthermore, the authority's scope for discretion is reduced to zero, because any assessment other than that the absence from the place of residence does not impair professional integration would be erroneous.
2.4 – SG Mainz, judgment of December 1, 2016 – S 10 AS 816/15
No unemployment benefit II without application
Court Note:
According to the Social Court, it has been definitively established by the highest court that "reinstatement to the previous status" does not apply in such a case, as this only helps in cases of an excusable failure to meet statutory deadlines, but not – as in the present case – in the absence of an application. A previous application cannot be construed in any other way, as this would require a breach of duty on the part of the Job Center. However, no such breach of duty has occurred: The Job Center fulfilled its obligation to inform benefit recipients of the necessity of reapplying before the end of the benefit period. There are no further obligations, such as visiting the plaintiff in person or involving social services on suspicion. The Job Center also had no indication of the plaintiff's problems, as the application process had functioned correctly in the past. Finally, even if the Job Center had been aware of the illness, it would not have been able to submit the application on the plaintiff's behalf. If the authority is accused of a general breach of its duty of care, the plaintiff can at most claim damages, which, however, must be asserted in the ordinary courts.
Source: Press release of the Social Court of Mainz No. 1/2017 dated January 3, 2017: www.juris.de
2.5 – Social Court Berlin, decision of 01.11.2016 – S 137 AS 14835/16 ER
Principle (Juris)
1. There are serious doubts as to whether the provisions of Section 180 Paragraph 4 Sentence 2 of the German Social Code, Book III (ensuring the financing of living expenses in the last third of education) are also applicable in basic income support law (following: Berlin-Brandenburg Higher Social Court, decision of August 11, 2016 – L 25 AS 1611/16 B ER –, juris)
2. If an authority refrains from revoking a favorable unlawful administrative act for reasons of discretion, it must, in principle, exercise discretion again in the revocation decision if it decides to revoke it at a later date, even if the relevant legal basis does not provide for the exercise of discretion by law (here: Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book Ten).
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Employment Promotion (SGB III)
3.1 – Lower Saxony-Bremen State Social Court, Judgment of 22 November 2016 – L 7 AL 2/15
Matters concerning the Federal Employment Agency
Principle (Juris):
In principle, the fact that the underlying employment contract was concluded only after the opening of the (provisional) insolvency proceedings does not preclude a claim for insolvency pay.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, Judgment of December 15, 2016 – L 7 SO 3998/15
Principle (Juris)
1. The claim of the emergency responder under Section 25 of the German Social Code, Book XII (SGB XII), as distinct from the claim of the person in need of assistance, exists only if the social welfare agency is unaware of the case for assistance. Once the social welfare agency becomes aware of the case, claims for social assistance must be asserted solely within the social law relationship between the person in need of assistance and the social welfare agency.
2. The emergency aid provider bears the burden of proof that the claim asserted by the person in need of assistance – in this case, assistance in case of illness (§ 19 para. 3 SGB XII) – exists.
3. It is not possible, without concrete findings regarding the income and assets of the person in need, to place an emergency aid provider in the position, by way of an official act, as if the person in need had actually been in need of assistance in accordance with Sections 82 et seq., 90 of the German Social Code, Book XII (SGB XII), based on the principles of the social law restitution claim.
Source: dejure.org
4.2 – Berlin-Brandenburg State Social Court, Decision of 21 December 2016 – L 15 SO 301/16 B ER – legally binding
Social assistance law – Basic income support for the elderly and those in dependent relationships – Assistance with care – “Kickback payments” – Termination of benefits – Discontinuation of ongoing benefits – Order of immediate enforcement
Principle (Juris)
1. On the order of the immediate enforceability of a decision on the revocation of a benefit award, the recovery of granted basic income support benefits and the offsetting against future basic income support benefits.
2. On the legality of the cancellation, recovery and set-off order in cases of suspected so-called "kick-back payments".
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Leipzig Social Court, decision of 02.12.2016 – S 5 AY 13/16 ER
The applicants are requesting full benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) – suspensive effect of the objection
SG Leipzig: If authorities effectively tolerate asylum seekers, subsistence benefits must not be reduced
Principle (Editor)
1. There are at least doubts as to whether the restriction of entitlement under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) is constitutional. In particular, it would have to be examined in the context of main proceedings whether the legislator's assumption that beneficiaries who have been granted international protection or a right of residence for other reasons in another Member State of the European Union or a third country participating in the distribution mechanism actually have a lower need in Germany as a matter of course, while retaining their right of residence there, compared to beneficiaries under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) is correct.
2. The question arises because every person's right to a guaranteed minimum standard of living derives from Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law (see Federal Constitutional Court, Judgment of July 18, 2012 – 1 BvL 10/10, 1 BvL 2/11; Judgment of February 9, 2010 – 1 BvL 1/09 et al.). The possibility of the foreigner returning to their country of origin is irrelevant in this consideration. Given the nature of the aforementioned fundamental right as a human right, this possibility is constitutionally irrelevant at least as long as the actual residence in Germany is tolerated by the competent authorities (see Federal Social Court [BSG], Judgment of January 20, 2016 – B 14 AS 35/15 R).
Source: socialcourtsability.de
Note:
Social Court Leipzig: In cases of de facto toleration by authorities, subsistence benefits for asylum seekers may not be reduced
(Social Court Leipzig, decision of December 2, 2016 – S 5 AY 13/16 ER: rsw.beck.de
6. Miscellaneous information on Hartz IV and other legal codes
Lebenshilfe: Federal Participation Act and related legislation – what's changing? Overview of the most important changes: www.lebenshilfe.de
Information and working aids from the Paritätische Wohlfahrtsverband (Parity Welfare Association) on the Second Long-Term Care Strengthening Act (PSG II): infothek.paritaet.org and infothek.paritaet.org
Attorney Helge Hildebrandt, Kiel: No legal aid for the objection procedure if legal aid was granted for the review procedure?
If legal aid was granted for filing a review application, the denial of legal aid for subsequent objection proceedings should not infringe upon the applicant's constitutionally guaranteed right to equal access to justice under Article 3 Paragraph 1 in conjunction with Article 20 Paragraphs 1 and 3 of the Basic Law. This is because legal advice provided in the review proceedings is considered equivalent to legal advice being granted in the subsequent objection proceedings (Federal Constitutional Court, decision of November 7, 2016 – 1 BvR 1517/16 –).
Rating: sozialberatung-kiel.de
Social Law Justament 1-2017 SGB II Information – The »Modified Inflow Theory« 2017 Reloaded – on the crediting of income under SGB II: sozialrecht-justament.de and www.sozialrecht-justament.de
Asylum Seekers' Benefits Act (AsylbLG) from January 1, 2017, by Claudius Voigt, GGUA:
In December 2016, the Federal Council rejected a planned amendment (essentially a deterioration) to the Asylum Seekers' Benefits Act (AsylbLG). Therefore, the existing regulations of the AsylbLG will remain in effect this year until further notice, pending a legislative amendment following a referral to the Mediation Committee. This was announced by the Federal Ministry of Social Affairs.
However, this also means that, until further notice, we will again have a standard benefit rate that is neither objective nor realistic, as the needs have not been calculated based on the current income and expenditure survey, nor is a regular increase taking place.
Some information on this can be found at: www.nds-fluerat.org
Thuringian Higher Administrative Court, Decision of December 14, 2016 – 3 ZKO 638/16:
Appeals against refugee status for Syrian asylum seekers dismissed
. The Higher Administrative Court of Weimar rejected as inadmissible the applications filed by the Federal Republic of Germany in 2016 for leave to appeal in asylum disputes involving Syrian nationals.
Source: Press release of the Higher Administrative Court of Weimar No. 1/2017 of January 6, 2017: www.juris.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
