1. Decisions of the Federal Social Court of March 30, 2017 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of March 30, 2017 – B 14 AS 13/16 R
Guiding principle (editor)
An additional payment of operating costs for accommodation that is no longer inhabited must be taken into account as a current requirement in the month in which it is due in accordance with Section 22 Paragraph 1 S 1 SGB 2 if a benefit was received both in the period when the operating costs were incurred and at the time when the additional claim was due and the move to the new accommodation in accordance with Section 22 Paragraph 4 SGB 2 is provided with prior assurance from the basic social security provider.
Note to the court
In principle, according to Section 22 Paragraph 1 Sentence 1 SGB II, only the appropriate, actual expenses for the currently occupied apartment are to be borne because this is the only way to secure the accommodation. Unpaid expenses for previous apartments are debts; these are only adopted in exceptional cases (Section 22 Paragraph 8 SGB II). In this case, however, an exception must be made because the plaintiffs were consistently receiving benefits in accordance with SGB II from the time the additional claim actually arose until it was asserted and due. If the additional claim were not met, this would actually act as a ban on moving because Alg II recipients would be exposed to the risk of incurring debts if advance payments for additional costs were inadequate. If there is a legal relationship with the same landlord or energy supplier before and after the move, further disputes may arise with billing in subsequent years, with regard to which the job center would have to advise those entitled to benefits. In addition, a reimbursement of additional costs reduces the expenses for accommodation and heating, regardless of the question of a previous move in accordance with Section 22 Paragraph 3 SGB II.
Source: juris.bundessocialgericht.de
1.2 – BSG, judgment of March 30, 2017 – – B 14 AS 55/15 R
Guiding principle (editor)
Student insurance is not insurance within the meaning of Section 11b Paragraph 1 Sentence 1 No. 3 SGB II, Section 6 Paragraph 1 No. 2 Alg II-V (see BSG, judgment of December 8, 2016 - B 4 AS 59/ 15 R).
Source: juris.bundessocialgericht.de
1.3 – BSG, judgment of March 30, 2017 – B 14 AS 18/16 R
Guiding principle (editor)
The final decision based on the legal situation applicable at the time in accordance with Section 40 Paragraph 2 No. 1 SGB II old version in conjunction with Section 328 Paragraph 2 and 3 SGB III is not to be based on average income, but rather on the monthly principle (see Section 41 SGB II old version ) to go out.
Note to the court
1. Section 2 Paragraph 3 Sentence 1 Alg II -V in its current version cannot be used as the legal basis for a calculation based on average income, because the provision only regulates the provisional decision. There are no compelling reasons to extend it to the final decision. § 2 Paragraph 3 Sentence 1 Alg II -V old version applies according to its wording (“to be expected”) only for future times, and the legislator could easily have made a different regulation, especially since he has a regulation for a specific variant of the final decision in § 2 Paragraph 3 Sentence 3 Alg II -V aF.
2. Nothing different follows from Section 41a SGB II, which has since been introduced by the 9th SGB II -ÄndG with its paragraph 4 on an average income in the final decision, because the provision is not considered to have any retroactive effect (see Section 80 SGB II).
Source: juris.bundessocialgericht.de
2. Decision of the Federal Social Court on the catalog of health insurance benefits in connection with SGB II/SGB XII
2.1 - BSG, decision of July 5, 2016 - B 1 KR 18/16 B
Social court proceedings - necessary additional summons - serious possibility of another person liable to pay - procedural errors - catalog of health insurance benefits - need - securing the constitutionally guaranteed minimum subsistence level through Section 21 Paragraph 5 and Paragraph 6 SGB II - non-prescription medicines and dietary supplements Indian psyllium husks
Guiding principle (editor)
1. According to which a medical need that, in individual cases, differs significantly in size from an average need can be considered an unavoidable need within the meaning of Section 21 Paragraph 6 SGB II, which is necessary to ensure the humane minimum subsistence level to be granted, but is not an object of service in accordance with the constitution the GKV is.
2. With regard to the dietary supplement “Indian psyllium husks”, a claim by the plaintiff against the basic social security provider to ensure the minimum subsistence level in accordance with Section 21 Paragraph 5 SGB II can also be considered (see BSG, judgment of February 14, 2013, B 14 AS 48/12 R).
Source: www.rechtrecht-im-internet.de
3. Decisions of the state social courts on basic security for job seekers (SGB II)
3.1 - State Social Court of Lower Saxony-Bremen, decision of February 2, 2017 - L 11 AS 983/16 B ER
Matters under SGB II, interim legal protection, inadmissible anticipation of the main matter, assurance that the costs of accommodation and heating will be covered for moving-related expenses for persons entitled to benefits up to the age of 25; Security surcharge on the table values of Section 12 WoGG applicable from January 1, 2016 to determine the appropriateness of the accommodation
Guiding principle (Juris)
1. As part of the issuance of an interim order in accordance with Section 86b Paragraph 2 Sentence 2 SGG, the obligation of a SGB II service provider to issue an assurance in accordance with Section 22 Paragraph 5 SGB II (assurance to assume the expenses related to the move for accommodation and heating for persons entitled to benefits up to the age of 25) leads to an inadmissible anticipation of the main issue. However, if the conditions for issuing an interim order are met, in order to grant effective legal protection it may be necessary to temporarily oblige the service provider to cover the costs of accommodation and heating for the beneficiary's new accommodation.
2. If the adequacy of the accommodation is determined due to the lack of a coherent concept according to the table in Section 12 of the Housing Benefit Act (WoGG), the table values in Section 12 of the WoGG (in the version of the law reforming housing benefit law) applicable from January 1, 2016 are also referred to and to amend the Housing Promotion Act - WoGRefG - of October 2, 2015, BGBl I, p. 1610) to add a security surcharge of 10 percent (connection to LSG Niedersachsen Bremen, decision of July 4, 2016 - L 9 AS 310/16 B ER, Decision of November 24, 2016 – L 9 AS 941/16 B ER).
Source: www.rechtsprachung.niedersachsen.de
3.2 - State Social Court of Lower Saxony-Bremen, decision of October 26, 2016 - L 13 AS 287/16 B ER
basic security law - interim legal protection - on the reason for an order in the case of relative tenancies
The existence of a reason for an order in basic security proceedings in which the granting of accommodation and heating costs is sought in urgent legal protection is always a case-by-case decision and a generalization such as that such a reason for an order is always only available with the termination or with the collection of the Accepting the landlord's eviction notice is not accessible. Special features apply to relative tenancies (editor’s guideline)
Guiding principle (Juris)
The credence of a reason for an order as the basis for an interim order regularly requires special examination in tenancy relationships between relatives and can only be accepted in exceptional cases.
Source: www.rechtsprachung.niedersachsen.de
3.3 – Hamburg State Social Court, judgment of 02/23/2017 – L 4 AS 15/15
Regarding the question of whether the parents' payments should be taken into account as income within the meaning of Section 11 Paragraph 1 SGB II (here in individual cases negative)
Guiding principle (editor)
Grants from third parties that replace a service that was not provided unlawfully by the basic security provider until the legal status is established and are only to be repaid in the event of a victory, do not constitute income within the meaning of Section 11 Paragraph 1 SGB II. Such donations , with which the third party temporarily steps in - as it were in place of the basic security provider and subject to the reimbursement request - because the provider has not approved the benefit in time, do not release the basic security provider from its obligation to provide benefits (BSG, judgment of December 20, 2011, B 4 AS 46/11). As in the scope of application of the Twelfth Book of the Social Security Code and the Federal Social Assistance Act, the person seeking help cannot be held liable for temporarily obtaining the desired benefit on their own from the point of view of a failure to achieve the purpose of the originally requested benefit (BSG, judgment of October 6, 201 - B 14 AS 66/11).
Source: socialcourtsability.de
Legal tip:
Likewise SG Hamburg, judgment of September 16, 2014 – S 13 AS 2159/11
3.4 – Hamburg State Social Court, judgment of 02/23/2017 – L 4 AS 14/15
To take over the actual KdU according to Section 22 Paragraph 1 SGB II - No cap on the KdU if necessary due to moving
Guiding principle (editor)
A move to a better, more appropriate apartment was necessary here because the plaintiff's health and family situation spoke in favor of the move and the additional costs incurred were low (cf. BSG, judgment of November 24, 2011, B 14 AS 107 /10 R).
Source: socialcourtsability.de
3.5 – Thuringian State Social Court, decision v.
02/23/2017 - L 4 AS 1205/16 NZB - legally binding Principle (Juris)
1. Whether there is a community of responsibility and responsibility in accordance with Section 7 Paragraph 3 No. 3c SGB II is to be determined by the factual court on the basis of the overall picture arises from the assessment of all the evidence in the individual case. The assessment also refers to subjective facts (following: BSG, judgment of October 12, 2016 - B 4 AS 60/15 R).
2. No generalizable legal principle can be established under which actual conditions the presumption of willingness to accept responsibility and take responsibility according to Section 7 Paragraph 3a SGB II can be refuted. The general rule also applies with regard to Section 7 Paragraph 3a SGB II that the legal presumption can be refuted by proof to the contrary, Section 202 SGG in conjunction with. V. m. § 292 ZPO. It is necessary that the indicative facts required by the presumption regulation are not met or that the presumption of willingness to take responsibility is invalidated by other circumstances. What constitutes appropriate and sufficient evidence must always be examined on a case-by-case basis, taking into account all the circumstances.
Source: socialcourtsability.de
3.6 – Berlin-Brandenburg State Social Court, decision v.
March 8, 2017 – L 39 SF 1/17 BE ER – legally binding action to prevent enforcement – interim legal protection
Guiding Principle (Juris)
Enforcement orders cannot be appealed against, even in the social justice system, as they can be changed at any time by the issuing court (other view: LSG Lower Saxony-Bremen, decision of January 9, 2017, L 3 KA 87/16 B ER) .
Source: socialcourtsability.de
4. Decisions of the social courts on basic security for job seekers (SGB II)
4.1 - SG Hannover, judgment of November 2nd, 2016 - S 48 AS 687/16
No extension of the one-year deadline in Section 40 Paragraph 1 Sentence 2 SGB II
Guiding principle (Juris)
The shortening of the review period for SGB II benefits through the introduction of Section 40 Paragraph 1 Sentence 2 SGB II on April 1, 2011 is based on the basic idea that the tax-financed SGB II benefits serve to secure livelihoods and integration into work and in particular to cover current needs (so-called timeliness principle), so that the four-year period of Section 44 Paragraph 4 Sentence 1 SGB /13).
Source: socialcourtsability.de
4.2 - Neubrandenburg Social Court, judgment of November 9, 2016 (ref.: S 11 AS 71/16):
A sale here would obviously be uneconomical. S.d. § 12 Paragraph 3 No. 6 SGB II.
When assessing the economic efficiency or uneconomic efficiency, the benefits of recycling for the tax authorities must also be taken into account.
Principle Dr.
Manfred Hammel 1. In a two-person household consisting of two adults, where there are no other needs to be taken into account (such as a severe disability), a living space of approx. 200 square meters in an owner-occupied house is to be seen as clearly inadequate . This property is therefore not subject to the exclusion from exploitation arising from Section 12 Paragraph 3 Sentence 1 No. 4 SGB II.
2. The value of the property, which is to be assumed to be correspondingly low due to the urgent need for renovation of the house and the high proportion of undevelopable area, includes the load on this area with liabilities, the prepayment penalty charged by the lending bank when this property is sold and the amount of the costs of the property to be deducted from the external expansion that cannot be postponed.
3. If the amount determined in this way is only slightly above the relevant asset allowance in Section 12 Paragraph 2 Nos. 1 and 4 SGB II, it must be examined whether a sale of the house in question is considered uneconomical within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 SGB II must be interpreted.
4. This aspect is to be affirmed if the sale of this property does not result in a value above the capital allowance that would cover the social needs of the community for an approval period of six months. In this case, if the former homeowners continue to need help, the services to be provided by the job center in accordance with SGB II would increase significantly. In this situation, these applicants can claim significantly higher needs for accommodation and heating (§ 22 SGB II) than was previously the case.
4.3 – Chemnitz Social Court, decision v. March 14, 2017 – S 26 AS 405/17 ER
Czech citizens are entitled to ALG II based on their (subsequent) right of residence as an employee.
Guiding Principle (Juris)
The Union citizen who achieves a total period of employment of over one year within the framework of two or more employment relationships within 15 months enjoys a continuing - essentially unlimited - right of residence in accordance with Section 2 Paragraph 2 No. 2 in conjunction with Paragraph 3 Sentence 1 No. 2 Freedom of Movement Act/EU. He is therefore not excluded from basic security benefits for job seekers according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II, since he has a right of residence as an employee and not just a right of residence as a job seeker.
Source: socialcourtsability.de
4.4 – Potsdam Social Court, judgment of February 15, 2017 – S 49 AS 1256/14
Basic security for job seekers – Beneficiary – Obligation to cooperate – Present proof of identity
Guiding principle (editor)
Before approving benefits according to SGB 2, the responsible authority is entitled to require the presentation of proof of identity or ID cards (see LSG Berlin-Brandenburg, L 31 AS 762/14 B ER from May 15, 2014).
A notice.
Sa: Ban on ID copies a defeat for the job center
The Mainarbeit job center in Offenbach must now definitely change its working practices and is no longer allowed to photocopy or scan identification documents.
continue: www.fr.de
5. Decisions of the state social courts on employment promotion (SGB III)
5.1 – Baden-Württemberg State Social Court, judgment of 02/24/2017 – L 8 AL 3033/15
Guiding principle (Juris)
The French category 2 disability pension (Art. L341-4, R341-5 Code de la sécurité sociale) is comparable to the German pension due to total incapacity, which is why the receipt of the disability pension suspends the right to unemployment benefit according to § 156 SGB III leads.
Source: socialcourtsability.de
6. Decisions of the state social courts on social assistance (SGB XII)
6.1 – Berlin-Brandenburg State Social Court, decision v. 03/14/2017 -L 15 SO 321/16 B ER – legally binding
EU citizens - basic security for job seekers - social assistance - freedom of movement - job search - exclusion of benefits - European welfare agreement - equality for nationals
Guiding principle (Juris)
On the term “permitted residence” when applying the provisions of the European Welfare Agreement on national equality to EU citizens after the abolition of the certificate of freedom of movement in accordance with Section 5 Para. 1 FreizügG/EU as amended until January 28, 2013 and change to the provision of Section 23 Para . 2 SGB dated December 22, 2016, Federal Law Gazette I p. 3155).
Source: socialcourtsability.de
6.2 – Berlin-Brandenburg State Social Court, decision v.
02/03/2017 - L 23 SO 56/17 B ER legally binding order of the suspensive effect of an objection after ordering immediate execution
The authority's obligation to give reasons when ordering immediate enforcement
Guiding principle (editor)
1. The legislature has not excluded the suspensive effect of legal remedies in the context of the granting of benefits according to SGB July 2009 – L 23 SO 89/09 B ER).
2. In the normal legal case of the cancellation of social assistance benefits, the social assistance provider must - despite the assumed illegality of continued receipt of benefits - be required by law to provide benefits during an appeal process and is burdened with the uncertainty of the severity of benefits paid unjustly. Citing the circumstances of the normal case cannot therefore formally meet the requirements of justifying immediate enforcement.
Source: socialcourtsability.de
6.3 – LSG Schleswig-Holstein, resolution of February 14, 2017 (ref.: L 9 SO 7/17 B ER):
Principle Dr.
Manfred Hammel 1. On the justification of the assertion of advance payments in accordance with Section 19 Paragraph 5 Sentence 1 SGB if the house property, the use of which is required by the social welfare provider, is owned by the applicant's father, is encumbered with loan liabilities and has a lifelong right of residence in favor of the applicant's grandmother.
2. These ownership relationships, which are significantly characterized by the fact that the applicant can neither dispose of this asset himself nor therefore have any legal or factual influence on his father in this regard, must not be at the expense of the integration assistance measure that is absolutely necessary for him.
3. In this situation, the applicant cannot be expected to forego admission to the residential group he is applying for until the disputed legal issues have been clarified.
7. Decisions of the social courts on social assistance (SGB XII)
7.1 – Hamburg Social Court, judgment of January 16, 2017 – S 10 SO 334/12
A hospital provider's claim for reimbursement due to inpatient hospital treatment - requirements for the existence and continued existence of an urgent case
Guiding principle (editor)
1. The hospital is not entitled to emergency help if the patient's identity is unclear.
2. The failure to prove the facts of § 25 SGB
3. In view of the fact that the patient's need for help has not been established, there is no need to examine whether the defendant's obligation to provide benefits might also have been counteracted by the subordination of social assistance (Section 2 Paragraph 1 SGB XII) due to the patient's obligation to be insured in the statutory health insurance (more on this in detail BSG, judgment of November 18, 2014 – B 8 SO 9/13 R).
8. Decisions of the social courts on asylum law
8.1 – Social Court Hamburg, court decision v. 03/25/2014 – S 52 AY 14/13
The plaintiffs could not be granted benefits without a restriction on their claims in accordance with Section 1a AsylbLG.
Guiding principle (editor)
1. The regulation of Section 1a AsylbLG does not raise any constitutional concerns.
2. According to Section 1a No. 2 AsylbLG, persons who are generally entitled to benefits in accordance with Section 1 Paragraph 1 Nos. 4 and 5 AsylbLG receive limited benefits if, for reasons for which they are responsible, measures to end their stay cannot be carried out on them. These requirements are met, among other things, if the foreigner was deceptive about his identity or did not present any identification documents.
3. The plaintiffs meet these requirements. It is undisputed that they do not have identification documents from their home country and do not participate in obtaining identification documents.
Source: socialcourtsability.de
Legal tip:
Likewise Hamburg State Social Court, judgment of 08/03/2016 – L 4 AY 1/14
9. Miscellaneous information about Hartz IV, social assistance, asylum law and other law books
9.1 – Short info: Higher accommodation costs in SGB II/SGB XII in Wuppertal
further: tacheles-socialhilfe.de
Legal tip:
Düsseldorf Social Court, judgment of
February 2, 2017 - S 3 AS 4917/16 Regarding the question of whether a coherent concept can be assumed for the period in dispute here from October 1, 2016 to March 31, 2017 with regard to living space in the order of 50 square meters, is of fundamental importance, on the other hand, the question is whether, given the significant increase in the table values from January 1, 2016, a safety surcharge of 10% should continue to be applied.
Single Wuppertal Hartz IV recipients can demand higher housing costs from the job center, because the 2010 rent index used by the JC, which is based on data collection from 2009, is no longer suitable overall for determining appropriate accommodation costs in 2016 and 2017.
Guiding principle (editor)
1. The applicant is entitled to have their accommodation needs taken into account based on the housing benefit table plus a 10% surcharge.
2. The determination of the appropriate price per square meter by the basic security provider for apartments for one-person households of around 50 square meters is not based on a coherent concept in the sense of the case law of the Federal Social Court (BSG).
3. The 2010 rent index used by the JC, which is based on data collection from 2009, is no longer suitable overall for determining the appropriate accommodation costs in 2016 and 2017. The data collected in 2009 is no longer sufficient for periods from the end of 2014 onwards to assess the appropriateness of the accommodation costs (cf. judgments of the SG Düsseldorf of November 24, 2016, S 3 AS 489/15 and of July 4, 2016, S 13 AS 3749/15). Given the rising costs on the housing market in 2016 and 2017, data collected in 2009 cannot allow any conclusions to be drawn about current prices, especially since the situation on the general housing market has become even worse due to the mass influx of refugees who need inexpensive housing (see also SG Düsseldorf, judgment of July 4, 2016, ibid).
Source: socialcourtsability.de
Legal tip:
Also parallel proceedings S 3 AS 3131/15, S 3 AS 2307/15, S 3 AS 5043/15 and S 3 AS 2605/16, which also ended with judgments dated February 2, 2017.
LSG
Berlin-Brandenburg: Nationals of contracting states to the European Welfare Agreement (EFA) receive subsistence benefits according to SGB
of the European Welfare Agreement (EFA) receive living assistance benefits in accordance with SGB XII. The federal government has not declared any reservations about this. According to the case law of the BSG, the claim follows directly from constitutional law. This also applies after the new legal regulations on December 29, 2016.
Here is the decision of the LSG BB:
Source: tacheles-socialhilfe.de
9.3 - Darmstadt-Dieburg: District updates its guidelines for assessing appropriate accommodation costs - new values from February 1, 2017:
www.ladadi.de
9.4 - Restrictions on family reunification with unaccompanied minor refugees (Refugee Council of Lower Saxony eV)
Report from Friday March 31, 2017 - Filed under: Press releases
Guidelines from the Foreign Office make family reunification with siblings virtually impossible
With the circular of March 20, 2017, the Federal Foreign Office further specified the basis for family reunification with unaccompanied minor refugees.
The result is that the restrictive conditions make it virtually impossible for families with children to join recognized refugees living in Germany. Among other things, the decree stipulates: Siblings of minor refugees recognized in Germany can generally only obtain a visa for family reunification in accordance with Section 32 of the Residence Act if the parents can prove that sufficient living space is available in Germany.
In addition, parents must be able to secure a living for themselves and the children who follow them.
Only if there is a so-called “atypical case” should this be avoided “as an exception”. For example, it should be checked whether children can stay with relatives or in refugee camps, or whether a family member can stay behind with the children. The Federal Foreign Office considers the separation of parents or parents and children to be reasonable in principle. If a child recognized in Germany comes of age within 90 days, the issuing of a visa for siblings should be excluded.
In addition, sibling reunification should be considered in accordance with Section 36 Paragraph 2 of the Residence Act if there is so-called “extraordinary hardship”.
However, this is “always family-related” and results “explicitly from the separation of the siblings.” According to the AA, neither separation from parents represents “extraordinary hardship” nor “hardship resulting from life in a war or crisis zone.” Even in the event of “extraordinary hardship,” a guarantee of livelihood must be demanded, unless there is an “atypical case.” For refugee children who are not to be granted refugee status but only “subsidiary protection”, the Foreign Office points out the possibility of admission in accordance with Section 22 of the Residence Act. Corresponding applications to justify a “humanitarian emergency” should be processed directly by the Foreign Office. According to CDU parliamentary group leader Kauder, there are now 49 cases that are being processed.
Next: www.proasyl.de
9.5 – Sufficiently justify requests for review!
An article by lawyer Sebastian E. Obermaier, Leipzig A special feature of social law is the request for review.
With a review application, social benefits (e.g. unemployment benefit, “Hartz IV”, basic security, sickness benefit, care allowance, pension, injury benefit, etc.) or higher social benefits can be obtained or repayment obligations can be eliminated or reduced, even though the matter has “actually” already been resolved through a final administrative act is completed. However, requests for review can not only be made regarding social benefits, but also regarding all administrative acts under social law, for example also regarding GdB or status determinations or social security contribution notices.
The fact that requests for review can be submitted is not immediately clear from the law.
The decisive factor here is Book 10 of the Social Security Code (SGB However, Section 44, Paragraph 4, Sentence 3 of the SGB
Accordingly, the law requires that an application – an application for review – can be made. Section 44 Paragraph 1 Sentence 1 SGB and to the extent that social benefits have therefore been wrongly not provided or contributions have been wrongly collected, the administrative act must be withdrawn with effect for the past, even after it has become incontestable.
This means that the authority takes action on its own initiative - of its own motion - in favor of the person concerned if it notices that the law has been applied incorrectly or that the facts of the case are incorrect. However, since authorities are not obliged to deal with completed processes and “search for errors”, the requests for review from those affected are so important.
further: www.anwalt.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
