1. Decisions of the Federal Social Court of 30 March 2017 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 30.03.2017 – B 14 AS 13/16 R
Guiding principle (Editor):
A subsequent payment of operating costs for accommodation that is no longer occupied must be taken into account as a current need in the month of payment in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if there was a receipt of benefits both in the period in which the operating costs were incurred and at the time the subsequent claim was due, and the move to the new accommodation took place in accordance with Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) with prior approval from the basic income support provider.
Note to the Court:
In principle, according to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), only the reasonable, actual expenses for the currently occupied apartment are to be covered, as this is the only way to secure housing. Unpaid expenses for previous apartments constitute debt; these are only covered in exceptional cases (Section 22 Paragraph 8 SGB II). However, an exception must be made in this case because the plaintiffs were continuously receiving benefits under the SGB II from the time the additional payment claim actually arose until it was asserted and became due. If the additional payment claim were not covered, this would effectively act as a moving ban, because recipients of unemployment benefit II (Alg II) would be exposed to the risk of incurring debt if their utility prepayments were insufficient. If a legal relationship with the same landlord or energy supplier exists before and after the move, further disputes regarding billing in subsequent years may arise, and the job center would be obligated to advise the benefit recipients on these matters. Furthermore, a reimbursement of ancillary costs reduces the expenses for accommodation and heating, irrespective of whether a previous move has taken place, according to § 22 para. 3 SGB II.
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 30.03.2017 – – B 14 AS 55/15 R
Guiding principle (Editor):
A student insurance policy is not an insurance policy within the meaning of Section 11b Paragraph 1 Sentence 1 No. 3 SGB II, Section 6 Paragraph 1 No. 2 Alg II-V (cf. BSG, Judgment of 8.12.2016 – B 4 AS 59/15 R).
Source: juris.bundessocialgericht.de
1.3 – BSG, Judgment of 30.03.2017 – B 14 AS 18/16 R
Guiding principle (Editor):
In the final decision based on the then applicable legal situation according to § 40 para. 2 no. 1 SGB II aF in conjunction with § 328 para. 2, 3 SGB III, no average income should be taken as a basis, but rather the monthly principle (cf. § 41 SGB II aF) should be applied.
Court Note
1. Section 2 Paragraph 3 Sentence 1 of the former version of the German Social Code, Book II (SGB II) cannot serve as the legal basis for a calculation based on average income, as this provision only governs the preliminary decision. There are no compelling reasons to extend its application to the final decision as well. According to its wording ("to be expected"), Section 2 Paragraph 3 Sentence 1 of the former version of the SGB II applies only to future periods, and the legislator could easily have enacted a different regulation, especially since a provision for a specific variant of the final decision was included in Section 2 Paragraph 3 Sentence 3 of the former version of the SGB II.
2. Section 41a of the German Social Code, Book II (SGB II), introduced in the meantime by the 9th Amendment Act (9. SGB II-ÄndG), with its paragraph 4 concerning average income in the final decision, does not lead to a different conclusion, because the provision is not given any retroactive effect in this respect (cf. Section 80 SGB II).
Source: juris.bundessocialgericht.de
2. Decision of the Federal Social Court on the benefits catalog of health insurance in connection with the German Social Code, Book II/Book XII (SGB II/SGB XII)
2.1 – Federal Social Court, decision of 5 July 2016 – B 1 KR 18/16 B
Social court proceedings – necessary joinder – serious possibility of another liable party – procedural error – health insurance benefits catalog – neediness – safeguarding of the constitutionally guaranteed minimum subsistence level by Section 21 Paragraphs 5 and 6 of the German Social Code, Book II (SGB II) – non-prescription drugs and dietary supplements, Indian psyllium husks
Guiding principle (Editor):
1. A medical need that, in an individual case, deviates significantly in amount from an average need may be considered an unavoidable need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), which is necessary to secure the guaranteed minimum subsistence level but is not, in accordance with the constitution, a benefit provided by the statutory health insurance.
2. With regard to the dietary supplement "Indian psyllium husks," the plaintiff may also have a claim against the basic income support provider to secure the minimum subsistence level pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) (cf. Federal Social Court, 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 Income Support for Job Seekers (SGB II)
3.1 – State Social Court of Lower Saxony-Bremen, Decision of 02.02.2017 – L 11 AS 983/16 B ER
Matters under the German Social Code, Book II (SGB II), preliminary legal protection, inadmissible anticipation of the main issue, assurance of the assumption of relocation-related expenses for accommodation and heating for eligible persons up to the age of 25; safety surcharge on the table values of Section 12 of the Housing Benefit Act (WoGG) applicable from January 1, 2016, for determining the adequacy of accommodation
Principle (Juris)
1. In the context of issuing a preliminary injunction pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Procedure Act (SGG), the obligation of a social security agency under Book II of the German Social Code (SGB II) to issue a commitment pursuant to Section 22 Paragraph 5 SGB II (commitment to cover the costs of accommodation and heating due to relocation for eligible persons up to the age of 25) constitutes an impermissible prejudgment of the merits of the case. However, if the prerequisites for issuing a preliminary injunction are met, it may be necessary to provisionally order the social security agency to cover the costs of accommodation and heating for the new accommodation of the eligible person in order to guarantee effective legal protection.
2. If the suitability of the accommodation is determined according to the table in Section 12 of the Housing Benefit Act (WoGG) due to the lack of a conclusive concept, a safety surcharge of 10% must also be added to the table values of Section 12 WoGG applicable from 1 January 2016 (in the version of the Act to Reform Housing Benefit Law and to Amend the Housing Promotion Act – WoGRefG – of 2 October 2015, Federal Law Gazette I, p. 1610) (following the decisions of the Higher Social Court of Lower Saxony and Bremen of 4 July 2016 – L 9 AS 310/16 B ER, and of 24 November 2016 – L 9 AS 941/16 B ER).
Source: www.rechtsprachung.niedersachsen.de
3.2 – Lower Saxony-Bremen State Social Court, decision of 26 October 2016 – L 13 AS 287/16 B ER
Basic income support law – Preliminary legal protection – On the grounds for an order in cases of tenancy between relatives
The existence of grounds for an injunction in basic income support proceedings, where the granting of housing and heating costs is sought in preliminary legal protection, is always a case-by-case decision and not subject to generalization, such as the notion that such grounds for an injunction can only be assumed upon termination of the lease or the filing of an eviction lawsuit by the landlord. Special rules apply to tenancy agreements between relatives (Editor's note)
Principle (Juris):
In tenancy agreements between relatives, the substantiation of a ground for an injunction as the basis for a preliminary injunction regularly requires special examination and is only to be accepted in exceptional cases.
Source: www.rechtsprachung.niedersachsen.de
3.3 – Hamburg State Social Court, Judgment of 23 February 2017 – L 4 AS 15/15
Regarding the question of whether the payments from the parents are to be taken into account as income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (here, in this individual case, the answer is no)
Principle (Editor):
Third-party contributions that substitute for benefits unlawfully withheld by the basic income support provider until the lawful situation is restored, and which are only to be repaid in the event of success, do not constitute income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II). Such contributions, with which the third party temporarily steps in – as it were, in place of the basic income support provider and subject to a claim for reimbursement – because the provider has not approved the benefit in a timely manner, do not release the basic income support provider from its obligation to provide benefits (Federal Social Court, Judgment of December 20, 2011, B 4 AS 46/11). As in the application of the Social Code Book XII and the Federal Social Assistance Act, the applicant for assistance cannot be held against the fact that he has temporarily procured the desired service himself on the grounds of a failure to achieve the purpose of the originally requested service (BSG, Judgment of 6.10.201 – B 14 AS 66/11).
Source: socialcourtsability.de
Legal tip:
See also Hamburg Social Court, judgment of 16.09.2014 – S 13 AS 2159/11
3.4 – Hamburg State Social Court, Judgment of 23 February 2017 – L 4 AS 14/15
Regarding the assumption of actual housing costs according to § 22 para. 1 SGB II – No cap on housing costs if necessary due to relocation
Principle (Editor):
A move to a better-suited yet appropriate apartment was necessary here, as the plaintiff's health and family situation justified the move and the resulting additional costs were low (cf. BSG, judgment of 24.11.2011, B 14 AS 107/10 R).
Source: socialcourtsability.de
3.5 – Thuringian State Social Court, Decision of February 23, 2017 – L 4 AS 1205/16 NZB – legally
binding. Principle (Juris):
1. Whether a community of responsibility and mutual support exists pursuant to Section 7 Paragraph 3 No. 3c of the German Social Code, Book II (SGB II), must be determined by the court of first instance based on the overall picture that emerges from the evaluation of all relevant facts in the individual case. This evaluation also includes subjective facts (following: Federal Social Court, Judgment of October 12, 2016 – B 4 AS 60/15 R).
2. No generalizable legal principle can be established regarding the factual conditions under which the presumption of willingness to assume responsibility and liability pursuant to Section 7 Paragraph 3a of the German Social Code, Book II (SGB II) can be rebutted. The general rule also applies to Section 7 Paragraph 3a SGB II that the statutory presumption can be rebutted by proof to the contrary (Section 202 of the German Social Court Act (SGG) in conjunction with Section 292 of the German Code of Civil Procedure (ZPO)). It is necessary that the indicative facts required by the presumption rule are not fulfilled or that the presumption of willingness to assume responsibility is refuted by other circumstances. What constitutes appropriate and sufficient proof must always be examined on a case-by-case basis, taking all circumstances into account.
Source: socialcourtsability.de
3.6 – Berlin-Brandenburg State Social Court, decision of 08.03.2017 – L 39 SF 1/17 BE ER – legally binding
action to set aside enforcement – preliminary legal protection
Principle (Juris):
Enforcement orders are not subject to appeal in social court proceedings, as they can be amended at any time by the issuing court (different 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 income support for job seekers (SGB II)
4.1 – Social Court Hannover, Judgment of 2 November 2016 – S 48 AS 687/16
No extension of the one-year period stipulated in Section 40 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II)
Principle (Juris):
The shortening of the review period for benefits under the German Social Code, Book II (SGB II) by introducing Section 40 Paragraph 1 Sentence 2 SGB II on April 1, 2011, is based on the fundamental principle that the tax-financed benefits under SGB II serve to secure subsistence and integration into employment, and in particular are intended to cover current needs (so-called principle of relevance), so that the four-year period of Section 44 Paragraph 4 Sentence 1 SGB X appears too long (following the ruling of the Saxon State Social Court of November 6, 2014 – L 7 AS 534/13).
Source: socialcourtsability.de
4.2 – Social Court Neubrandenburg, judgment of November 9, 2016 (Case No.: S 11 AS 71/16):
In this case, a sale would obviously be uneconomical within the meaning of Section 12 Paragraph 3 No. 6 of the German Social Code, Book II (SGB II).
When assessing economic viability or uneconomical viability, the benefit of the utilization for the tax authorities must also be taken into account.
Guiding principle by Dr. Manfred Hammel
: 1. In the case of a two-person household consisting of two adults, where no other needs to be considered (such as a severe disability) exist, a living space of approximately 200 square meters in an owner-occupied house is to be considered clearly inappropriate. This property is therefore not subject to the exclusion from realization arising from Section 12 Paragraph 3 Sentence 1 No. 4 of the German Social Code, Book II (SGB II).
2. From the land value, which is to be set at a correspondingly low level due to the urgent need for renovation of the house and the high proportion of unbuildable area, the encumbrance of this area with liabilities, the prepayment penalty charged by the lending bank in the event of a sale of this property, and the amount of the costs of the urgently required exterior construction must be deducted.
3. If the amount determined in this way is only slightly above the relevant asset allowance under Section 12 Paragraph 2 Numbers 1 and 4 of the German Social Code, Book II (SGB II), it must be examined whether a sale of the house in question is to be considered uneconomical within the meaning of Section 12 Paragraph 3 Sentence 1 Number 6 of the German Social Code, Book II (SGB II).
4. This aspect is affirmed if the sale of this property does not yield a value exceeding the asset allowance that would cover the needs of the household for a six-month benefit period, as defined by social welfare law. In such a case, if the former homeowners continue to require assistance, the benefits to be provided by the job center under Book II of the German Social Code (SGB II) would increase significantly. These applicants could then claim considerably higher allowances for accommodation and heating (§ 22 SGB II) than previously.
4.3 – Chemnitz Social Court, decision of 14 March 2017 – S 26 AS 405/17 ER
Czech nationals are entitled to ALG II (unemployment benefit II) due to their (continuing) right of residence as employees.
Principle (Juris):
A Union citizen who, within 15 months, accumulates a total employment period of more than one year across two or more employment relationships, enjoys a continuing – and in principle indefinite – right of residence pursuant to Section 2 Paragraph 2 No. 2 in conjunction with Paragraph 3 Sentence 1 No. 2 of the Freedom of Movement Act/EU. Consequently, they are not excluded from basic income support for jobseekers under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), as they possess a right of residence as an employee and not merely as a jobseeker.
Source: socialcourtsability.de
4.4 – Potsdam Social Court, Judgment of 15 February 2017 – S 49 AS 1256/14
Basic income support for job seekers – benefit recipient – duty to cooperate – submission of proof of identity
Principle (Editor):
Before granting benefits under the German Social Code, Book II (SGB II), the competent authority is entitled to request the submission of identity documents or identity cards (compare LSG Berlin-Brandenburg, L 31 AS 762/14 B ER of May 15, 2014).
Note: Sat:
Ban on ID card copies – a setback for the job center
The Mainarbeit job center in Offenbach must now definitely change its work practices and is no longer allowed to photocopy or scan identity 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 24 February 2017 – L 8 AL 3033/15
Principle (Juris):
The French disability pension of category 2 (Art. L341-4, R341-5 Code de la sécurité sociale) is comparable to the German pension for total incapacity for work, which is why the receipt of the disability pension leads to the suspension of the entitlement to unemployment benefit pursuant to § 156 SGB III.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Social Assistance (SGB XII)
6.1 – Berlin-Brandenburg State Social Court, decision of 14 March 2017 - L 15 SO 321/16 B ER – legally binding
EU citizens – basic income support for job seekers – social assistance – freedom of movement – job search – exclusion from benefits – European Social Security Convention – equal treatment of nationals
Principle (Juris)
On the concept of "authorised residence" when applying the provisions of the European Convention on Social and Cultural Rights on equal treatment of nationals to EU citizens after the abolition of the certificate of free movement pursuant to Section 5 Paragraph 1 of the Freedom of Movement Act/EU as amended up to 28 January 2013 and the amendment of the provision of Section 23 Paragraph 2 of the German Social Code, Book XII (exclusion of social assistance benefits for foreigners and their family members) on 29 December 2016 by the Act on the Regulation of Claims of Foreign Persons in Basic Income Support for Job Seekers under the Second Book of the German Social Code and in Social Assistance under the Twelfth Book of the German Social Code (of 22 December 2016, Federal Law Gazette I p. 3155).
Source: socialcourtsability.de
6.2 – Berlin-Brandenburg State Social Court, decision of 03.02.2017 – L 23 SO 56/17 B ER legally binding
order for the suspensive effect of an objection after an order for immediate enforcement
The authority's obligation to provide reasons when ordering immediate enforcement
Principle (Editor)
1. The legislator has not excluded the suspensive effect of legal remedies in the context of the granting of benefits under the German Social Code, Book XII (SGB XII) – unlike under Section 39 of the German Social Code, Book II (SGB II) for the cancellation of basic income support benefits for job seekers (cf. decision of the Senate of July 13, 2009 – L 23 SO 89/09 B ER).
2. In the standard legal case of the termination of social assistance benefits, the social assistance provider is therefore legally obligated to continue providing benefits during legal proceedings, despite the presumed illegality of the continued receipt of benefits, and is burdened with the uncertainty of the enforceability of wrongly paid benefits. Therefore, citing the circumstances of the standard case cannot formally meet the requirements for justifying immediate enforcement.
Source: socialcourtsability.de
6.3 – LSG Schleswig-Holstein, decision of 14 February 2017 (file no.: L 9 SO 7/17 B ER):
Guiding principle by Dr. Manfred Hammel
1. On the justification for claiming advance payments in accordance with Section 19 Paragraph 5 Sentence 1 of the German Social Code, Book XII (SGB XII) in the form of assuming the costs for a therapeutic residential group (Sections 53 et seq., 54 Paragraph 1 Sentence 1 No. 1 SGB XII), if the house property, the use of which is demanded by the social welfare agency, is owned by the applicant's father and is encumbered with loan liabilities as well as with a lifelong right of residence established in favor of the applicant's grandmother.
2. These ownership circumstances, which are characterized by the fact that the applicant can neither dispose of this asset himself nor exert any legal or factual influence on his father in this regard, must not be to the detriment of the integration assistance measure that is entirely indisputable for him.
3. In this situation, it is unreasonable to expect the applicant to forgo admission to the residential group he has requested 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 16 January 2017 – S 10 SO 334/12
A hospital operator's claim for reimbursement due to inpatient hospital treatment – requirements for the existence and continuation of an urgent case
Guiding principle (Editor)
: 1. No claim for emergency assistance by the hospital if the patient's identity is unclear.
2. The inability to prove the facts establishing the claim under Section 25 of the German Social Code, Book XII (SGB XII) is to the detriment of the emergency aid provider (LSG Baden-Württemberg, judgment of 15 December 2016 – L 7 SO 3998/15).
3. In view of the fact that the patient's need for assistance has not been established, there is no need to examine whether the defendant's obligation to provide benefits might also have been precluded by the subsidiary nature of social assistance (§ 2 para. 1 SGB XII) due to the patient's compulsory insurance in the statutory health insurance system (for details see BSG, judgment of 18.11.2014 – B 8 SO 9/13 R).
8. Decisions of the social courts on asylum law
8.1 – Hamburg Social Court, judgment of 25 March 2014 – S 52 AY 14/13
The plaintiffs could not be granted benefits without restrictions on their entitlement pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
Guiding principle (Editor)
1. The regulation of § 1 a AsylbLG does not raise any constitutional concerns.
2. According to Section 1a No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), persons who are generally entitled to benefits under Section 1 Paragraph 1 Nos. 4 and 5 of the AsylbLG receive limited benefits if deportation measures cannot be carried out against them for reasons attributable to them. These conditions are met, among other things, if the foreigner misrepresented their identity or failed to present identification documents.
3. The plaintiffs meet these requirements. It is undisputed that they do not possess identity documents from their home country and are not cooperating in obtaining identity documents.
Source: socialcourtsability.de
Legal tip:
See also Hamburg State Social Court, judgment of 03.08.2016 – L 4 AY 1/14
9. Miscellaneous information on Hartz IV, social assistance, asylum law and other legal codes
9.1 – Brief information: Higher accommodation costs under SGB II/SGB XII in Wuppertal
More information: tacheles-sozialhilfe.de
Legal tip:
Düsseldorf Social Court, judgment of 02.02.2017 – S 3 AS 4917/16.
The question of whether a coherent concept can be assumed for the period in dispute here from 01.00.2016 to 31.03.2017 with regard to living space in the range of 50 square meters is of fundamental importance, as is the question of whether, in view of the significant increase in the table values from 01.01.2016, a safety surcharge of 10% should still be applied.
Single recipients of Hartz IV benefits in Wuppertal can demand higher housing costs from the job center, because the rent index 2010 used by the job center, which is based on data collected in 2009, is no longer suitable for determining reasonable accommodation costs in 2016 and 2017.
Guiding principle (Editor)
1. The applicant is entitled to consideration of his accommodation needs based on the housing benefit table plus a 10% supplement.
2. Because the determination of the appropriate price per square meter by the basic income support provider for apartments for single-person households in the size range of around 50 square meters is not based on a conclusive concept within the meaning of the case law of the Federal Social Court (BSG).
3. The 2010 rent index used by the Jobcenter, which is based on data collected in 2009, is no longer suitable for determining reasonable accommodation costs in 2016 and 2017. The data collected in 2009 is insufficient for assessing the reasonableness of accommodation costs, at least for periods from the end of 2014 onwards (see judgments of the Social Court of Düsseldorf of November 24, 2016, S 3 AS 489/15 and of July 4, 2016, S 13 AS 3749/15). Data collected in 2009 cannot allow for conclusions to be drawn about current prices in light of the rising costs on the housing market in 2016 and 2017, especially since the situation on the general housing market has been further exacerbated by the mass influx of refugees who need affordable housing (see also SG Düsseldorf, judgment of 04.07.2016, loc. cit.).
Source: socialcourtsability.de
Legal tip:
Similarly, 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 of 02.02.2017.
9.2 – Berlin-Brandenburg Higher Social Court: Nationals of contracting states to the European Convention on Social and Cultural Rights (ECSR) receive subsistence benefits under Book XII of the German Social Code (SGB XII
). The 18th Senate of the Berlin-Brandenburg Higher Social Court (LSG) recently ruled as follows (decision of March 21, 2017): 1. Nationals of contracting states to the European Convention on Social and Cultural Rights (ECSR) receive subsistence benefits under Book XII of the German Social Code (SGB XII). The Federal Government has not raised any objections to this. According to the jurisprudence of the Federal Social Court (BSG), the entitlement derives directly from constitutional law. This also applies after the new legal regulations of December 29, 2016.
Here is the decision of the LSG BB:
Source: tacheles-sozialhilfe.de
9.3 – Darmstadt-Dieburg: District updates its guidelines for assessing reasonable accommodation costs – new values effective from February 1, 2017:
www.ladadi.de
9.4 – Restrictions on family reunification for unaccompanied minor refugees (Refugee Council of Lower Saxony eV)
News report from Friday, March 31, 2017 – Filed under: Press releases
Guidelines from the Federal Foreign Office make family reunification with siblings virtually impossible
With its circular of March 20, 2017, the Federal Foreign Office further specified the grounds for family reunification for unaccompanied minor refugees. The result is that the restrictive conditions make family reunification with recognized refugees living in Germany virtually impossible. Among other things, the circular stipulates that
siblings of recognized minor refugees in Germany can generally only obtain a family reunification visa under Section 32 of the Residence Act if the parents can prove that sufficient living space is available in Germany.
In addition, the parents must be able to secure their livelihood and that of the children joining them. Only in so-called "atypical cases" will exceptions be made. For example, it will be examined whether children can remain with relatives or in refugee camps, or whether a family member can stay behind with the children. The Federal Foreign Office generally considers the separation of parents or of parents and children to be acceptable.
If a child recognized as a refugee in Germany turns 18 within 90 days, the issuance of a visa for siblings should be excluded.
Furthermore, family reunification for siblings should be considered under Section 36 Paragraph 2 of the Residence Act if there is so-called "exceptional hardship." This hardship, however, is "always family-related" and arises "explicitly from the separation of the siblings." According to the Federal Foreign Office, neither separation from parents nor "hardship resulting from living in a war zone or crisis area" constitutes "exceptional hardship." Even in cases of "exceptional hardship," proof of sufficient means of subsistence must be provided, unless an "atypical case" exists.
For refugee children who are not granted refugee status but only "subsidiary protection," the Federal Foreign Office refers to the possibility of admission under Section 22 of the Residence Act. Applications for "humanitarian emergency" are to be processed directly by the Federal Foreign Office. According to CDU parliamentary group leader Kauder, there are now 49 cases being processed.
More information: www.proasyl.de
9.5 – Sufficiently Justify Review Applications! An article by Attorney Sebastian E. Obermaier, Leipzig.
A special feature of social law is the review application. A review application can be used to obtain social benefits (e.g., unemployment benefits, "Hartz IV," basic income support, sickness benefits, long-term care benefits, pensions, injury benefits, etc.) or higher social benefits, or to eliminate or reduce repayment obligations, even though the matter has "actually" already been concluded by a legally binding administrative act.
Review applications can be filed not only regarding social benefits, but also regarding all administrative acts under social law, such as determinations of disability or status, or social security contribution notices.
The possibility of filing review applications is not immediately apparent from the law. The relevant legislation is Book Ten of the German Social Code (SGB X – X being the Roman numeral for 10), which contains the general regulations for social administrative procedures.
Section 44, paragraph 4, sentence 3 of the German Social Code, Book X (SGB X) contains a provision regarding the calculation of the period for which retroactive benefits are to be provided if the authority has acted upon an application. Accordingly, the law presupposes that an application – a review application – can be submitted.
Section 44, paragraph 1, sentence 1 of the SGB X – revocation of an unlawful, non-beneficial administrative act – stipulates that if it emerges in an individual case that the law was incorrectly applied or that the decision was based on facts that prove to be incorrect, and insofar as social benefits were wrongfully withheld or contributions were wrongfully collected as a result, the administrative act must be revoked with retroactive effect, even after it has become legally binding.
This means that the authority will act on its own initiative – ex officio – in favor of the affected party if it has noticed that the law was incorrectly applied or that the decision was based on incorrect facts. However, since authorities are not obliged to deal with completed processes and "go on a search for errors", the review requests of those affected are of great importance.
More information: www.anwalt.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
