1. Decisions of the Federal Social Court of 04.04.2017 on basic income support for job seekers (SGB II) and on employment promotion law according to the (SGB III).
1.1 – BSG, Judgment of 04.04.2017 – B 4 AS 6/16 R
Unemployment benefit II – Review application after termination of benefit receipt – Housing and heating benefits – Continued need for assistance is not an unwritten criterion
Can someone who is no longer eligible for benefits after their need for assistance has ceased claim back payments for periods of benefit receipt by applying under Section 44 of the German Social Code, Book X (SGB X)? (Yes)
The applicable procedural provisions do not stipulate a continuing need for assistance as an additional requirement for eligibility.
Guiding principle (Editor):
The review of an administrative act that has become legally binding pursuant to Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (here with regard to benefits for accommodation and heating pursuant to Section 22 of the German Social Code, Book II) takes place regardless of whether the applicant is still receiving benefits under the German Social Code, Book II.
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 04.04.2017 – B 11 AL 19/16 R, B 11 AL 5/16 R
A waiting period due to lack of proof of job search efforts only applies if the employment agency promises a "consideration"
The Federal Social Court (BSG) has ruled that a two-week suspension of unemployment benefits due to a lack of proof of job search efforts will also apply if the unemployed person, despite being informed of the legal consequences, has simply failed to provide proof of the job search efforts required by the employment agency.
However, this presupposes that the integration agreement, in which the applicant's own efforts and their documentation are specifically described, also includes a commitment to provide placement support services (coverage of application costs, travel expenses for job interviews).
Source: Press release from the Federal Social Court (BSG) dated April 4, 2017: www.juris.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, Judgment of 23 February 2017 – L 34 AS 3224/14
Assumption of an operating cost claim – reduction of benefits for accommodation and heating during the billing period – 1-person household in Berlin – abstractly appropriate gross rent excluding utilities based on the fundamental data of the qualitative Berlin rent index – separate determination of appropriate heating costs – heating costs only eligible for consideration up to the actual amount
Regarding the assumption of an operating cost arrears claim for the 2010 accounting year (here denied)
Note from the Court:
The fact that the ancillary costs claim became due (in February 2012) does not mean that this need is materially allocated to that month (cf. Federal Social Court, Judgment of March 22, 2010 – B 4 AS 62/09 R). Rather, the legal situation, i.e., the basis and amount of the asserted claim, is assessed solely according to the factual and legal circumstances of the period to which the claim in question can be attributed in the factual sense, namely, in this case, the period from January 1 to December 31, 2010 (cf. also Federal Social Court, Judgment of April 6, 2011, B 4 AS 12/10 R; Higher Social Court Berlin-Brandenburg, Decision of September 19, 2013, L 18 AS 1218/12).
Source: www.gerichts Decisions.berlin-brandenburg.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 27 February 2017 – L 18 AS 2884/16
Unemployment benefit II – Freedom of movement of workers – Definition of worker – Romanian citizen
The Romanian applicant is entitled to unemployment benefit II (ALG II) due to his status as an employee. According to the case law of the European Court of Justice (ECJ) and the Federal Social Court (BSG), the work he performs is not considered entirely subordinate or insignificant.
Berlin Higher Social Court: With 5 hours per week and a monthly income of 180 euros, EU worker status may apply. Therefore, entitlement to benefits under the German Social Code, Book II (SGB II).
Principle (Editor):
The Federal Social Court (BSG) has already affirmed the existence of employee status with a weekly working time of 7.5 hours and a monthly salary of €100 (see BSG, judgment of October 19, 2010, B 14 AS 23/10 R). The same must apply to the employment in question here, with a workload of five hours per week and a monthly salary of €180.
Source: socialcourtsability.de
Legal tip:
The same result was reached by the Bavarian State Social Court in its decision of February 6, 2017 – L 11 AS 887/16 B ER.
2.3 – Berlin-Brandenburg State Social Court, Judgment of 23 February 2017 – L 25 AS 931/16
Withdrawal of the action – Subject matter of the appeal proceedings – Interpretation of procedural declarations – Contestability and revocation of a declaration of withdrawal of the action – Good faith – Court's instructions – Court's procedural duty of care – Language problems of the appellant
Principle (Juris):
A withdrawal of a claim by someone who is not legally represented and lacks legal expertise is generally effective, unappealable, and irrevocable even if it is based on a judicial instruction that is legally incorrect. It remains open here whether this also applies if the judicial instruction relates to the alleged inadmissibility of an appeal; however, the Senate is inclined to assume that even in this case, the withdrawal constitutes an effective, unappealable, and irrevocable declaration terminating the proceedings.
Source: socialcourtsability.de
2.4 – Saxon State Social Court, decision of 04.01.2017 – L 3 AS 1222/15 NZB – legally binding
Basic income support for job seekers – household unit – transsexual – possibility of marriage – establishment of a registered civil partnership – requirements for a community of responsibility and support
Guiding principle (Editor)
: Transsexual people can also be partners in a SGB II benefit unit.
Source: socialcourtsability.de
2.5 – North Rhine-Westphalia State Social Court, decision of 02.03.2017 – L 7 AS 57/17 B ER – legally binding
Basic income support for job seekers – Exclusion from benefits during stay in a facility for the execution of judicially ordered deprivation of liberty – Independent trial living in one's own apartment within the framework of preventive detention – Leave of absence
Permanent leave to live in one's own apartment enables the granting of benefits under the German Social Code, Book II (SGB II).
Guiding principle (Editor):
Trial living within the framework of preventive detention does not constitute residence based on judicial deprivation of liberty in the sense of preventive detention law and does not justify an exclusion from benefits under Section 7 Paragraph 4 of the German Social Code, Book II (Bavarian State Social Court and the Lower Saxony-Bremen State Social Court (Bavarian State Social Court judgment of September 17, 2014 – L 16 AS 813/13; Lower Saxony-Bremen State Social Court judgments of March 24, 2015 – L 7 AS 1504/13 and of January 26, 2016 – L 13 AS 309/13), according to which permanent leave to live in one's own apartment enables the granting of benefits.
Source: socialcourtsability.de
Legal tip:
Similarly, Hamburg Social Court, judgment of 21.01.2016 – S 23 AS 3602/15 and Hamburg State Social Court, judgment of 24.01.2017 – No exclusion from ALG II benefits for persons not on leave from preventive detention who are to pursue employment subject to social security contributions.
2.6 – North Rhine-Westphalia State Social Court, decision of 08.03.2016 – L 12 AS 1825/16 NZB – legally binding.
The standard benefit rate applicable since 01.01.2016 has not been set too low.
Principle (Editor):
The Senate currently sees no indications that the determination of the standard benefit rate was unlawful or unconstitutional (see also LSG NRW decision of 01.12.2016, L 19 AS 2235/16 B, judgment of 28.11.2016, L 19 AS 1372/15 and decision of 27.10.2016, L 9 SO 447/16 B; Bayerisches LSG judgment of 14.09.2016, L 16 AS 373/16 and decisions of 21.07.2016, L 18 AS 405/16 B PKH and of 24.08.2016, L 16 AS 222/16 B PKH).
Source: socialcourtsability.de
3. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – Duisburg Social Court, Judgment of 24 March 2017 – S 5 AS 1078/16
Unemployment benefit II – accommodation and heating – increased space requirements due to exercising visitation rights with the separated child – accommodation needs of the parent entitled to visitation
There are no grounds for increasing the need for living space during the period before school entry.
Increased housing needs are only to be granted for the period after the child starts school.
Guiding principle (Editor):
1. It is not necessary for the child to spend more than 50% of their time with the parent claiming increased housing needs. Rather, this is a criterion for determining the child's primary residence, not for recognizing a temporary household unit.
2. Contrary to the Job Center's opinion, the walking distance between the plaintiff's residence and the child's primary residence is not a suitable criterion for determining the appropriate jurisdiction. While state benefits are not required to optimize visitation rights, they are intended to facilitate them. The court is convinced that exercising visitation rights also includes the parent with visitation rights and the child sharing daily life, which—regardless of distance—includes overnight stays in the home of the parent with visitation rights.
3. For such a temporary household, half of the recognized living space requirement (currently ½ of 15 sqm = 7.5 sqm) is only to be granted for the period from the time the child enters school.
Source: socialcourtsability.de
3.2 – Augsburg Social Court, decision of 21 March 2017 – S 8 AS 288/17 ER
Exception to the exclusion of EU citizens from benefits under the German Social Code, Book II (SGB II)
Principle (Juris):
If a Union citizen fulfills the requirements for a permanent right of residence under Section 4a of the Freedom of Movement Act/EU, they are not excluded from benefits under the German Social Code, Book II (SGB II), due to the exception in Section 7 Paragraph 1 Sentence 4 SGB II. (Editorial principle)
Source: socialcourtsability.de
3.3 – Augsburg Social Court, decision of 30 December 2016 – S 14 AS 1445/16 ER
Exclusion of coverage of drug costs by the basic income support provider – exclusion of coverage of travel expenses for outpatient medical treatment of the beneficiary by the basic income support provider – no coverage of car insurance with comprehensive coverage and "third-party driver" insurance
Principle (Editor)
1. Insofar as the applicant seeks reimbursement of travel expenses for outpatient medical treatment, it must be noted that, as a person with statutory health insurance, it is incumbent upon her to first assert the requested health-specific needs with the statutory health insurance and, if necessary, to enforce them by legal means (cf. in general SG Neuruppin, decision of 06.07.2015, file no.: S 26 AS 1323/15 ER).
2. Insofar as the applicant seeks reimbursement of the costs for medications and dietary supplements not covered by health insurance, these costs are to be covered from the standard benefit under Section 20 of the German Social Code, Book II (SGB II) (see also Social Court Neuruppin, judgment of October 12, 2015, file number: S 26 AS 259/11).
Source: socialcourtsability.de
Legal tip:
See Bavarian State Social Court, decision of 09.03.2017 – L 7 AS 167/17 B ER – In order not to open the door to arbitrary elective medicine financed with tax revenue, the assumption of costs for additional health-related needs under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) is only possible if, before the start and during the treatment measure in question, a sufficient reason for the intervention, i.e., an indication, can be comprehensibly established based on the medical records.
3.4 – Social Court Neuruppin, decision of 26.02.2016 – S 26 AS 294/16 ER – legally binding
Regarding the obligation of the respondent in the context of preliminary legal protection proceedings to grant the applicants access to files and electronically stored data within the framework of the granting of benefits in accordance with the provisions of the German Social Code, Book II (SGB II) – lack of a legitimate interest in legal protection
Court Note:
In principle, the person entitled to benefits must contact the relevant administration, submit an application for the desired benefit or administrative action, and wait for the normal processing time. Therefore, it is generally required that, before initiating legal proceedings, the applicant contact the benefit provider, attempt to obtain clarification through this channel, and, under certain circumstances, set a reasonable deadline by which the administration must issue a final decision (see Lower Saxony-Bremen State Social Court, decision of March 13, 2013 – L 7 AS 808/12 B).
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Employment Promotion (SGB III)
4.1 – Saxon State Social Court, Judgment of 09.02.2017 – L 3 AL 274/15 – Appeal pending before the Federal Social Court under file number B 11 AL 4/17 AR
A waiting period for unemployed persons for non-participation in a measure is also lawful if the measure was not part of the EGV (integration agreement).
Guiding principle (Editor):
An employment agency can offer an unemployed person a vocational integration measure even outside of an integration agreement. The waiting period provision in Section 159 Paragraph 1 Sentence 2 No. 4 of the German Social Code, Book III (SGB III), however, only refers to the fact that a vocational integration measure was refused, and not to the basis on which it was offered to the unemployed person.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Lower Saxony-Bremen State Social Court, decision of 16 February 2017 – L 8 SO 344/16 B ER
Social assistance for EU citizens, benefit restrictions pursuant to Section 23 of the German Social Code, Book XII (SGB XII) as amended on December 29, 2016, granting of provisional benefits pursuant to the German Social Code, Book II (SGB II)
Lower Saxony-Bremen State Social Court: As long as no provisional benefits under the German Social Code, Book II (SGB II) have been granted, the assumption of a priority entitlement to benefits under the SGB II – leading to exclusion from benefits under the SGB XII – is generally not justified (see Berlin-Brandenburg State Social Court, decision of December 7, 2016 – L 15 SO 293/16 B ER –).
Principle (Juris):
1. EU citizens who are subject to the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) in the version applicable until December 28, 2016, and who have resided in Germany for more than six months and are in need of assistance, are to be granted subsistence benefits under the German Social Code, Book XII (SGB XII) for the period until December 28, 2016. At least in expedited proceedings, it must be assumed that the discretion granted under Section 23 Paragraph 1 Sentence 3 of the SGB XII is reduced to zero in this situation (following the Federal Social Court's ruling of December 3, 2015 – B 4 AS 44/15 R).
2. If the conditions pursuant to Section 41a Paragraph 7 Sentence 1 No. 1 of the German Social Code, Book II (SGB II) for a preliminary decision on benefits under the SGB II are met, the discretion granted pursuant to Section 41a Paragraph 7 Sentence 1 of the SGB II may also be reduced to zero for benefit periods from December 29, 2016 onwards due to the benefit restrictions introduced by the amendment to Section 23 of the German Social Code, Book XII (SGB XII), with the consequence that the aforementioned group of persons shall be granted provisional benefits under the SGB II.
Source: www.rechtsprachung.niedersachsen.de
5.2 – North Rhine-Westphalia State Social Court, decision of 29.03.2017 – L 9 SO 53/17 B – legally binding.
Legal aid, for the granting of which, according to § 114 of the German Code of Civil Procedure (ZPO), depends on the personal and economic circumstances of the applicant, is personal and not inheritable.
Principle (Editor):
The right to legal aid is thus a highly personal right that ends with the death of the entitled person in need of assistance. Accordingly, legal aid cannot be granted to a party for the period after their death (cf. Federal Social Court [BSG], Decision of December 2, 1987 – 1 RA 25/87; Higher Social Court of North Rhine-Westphalia [LSG NRW], Decision of February 29, 2008 – L 20 B 9/08 SO; Higher Social Court of Berlin-Brandenburg [LSG Berlin-Brandenburg], Decision of February 10, 2015 – L 7 KA 55/12 B PKH; see also Bavarian Higher Social Court [Bayerisches LSG], Decision of April 8, 2015 – L 3 SB 2/15 B PKH; Higher Social Court of Saxony-Anhalt [LSG Sachsen-Anhalt], Decision of January 19, 2016 – L 3 R 466/15 B).
Source: socialcourtsability.de
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – Aachen Social Court, Judgment of 28 March 2017 – S 20 SO 48/16
Regarding the entitlement to integration assistance for the procurement of a motor vehicle with the possibility of transporting an electric (E) wheelchair (affirmed here)
Family visits are also relevant integration goals.
Principle (Editor)
1. The view of the social welfare agency that, according to § 8 para. 1 EinglHV, an intensity of use comparable to the necessity for participation in working life is required is not in accordance with the standards developed by the BSG.
2. A rigid comparison with the intensity of use during participation in working life does not serve as a "corrective" against excessive demands of the individual concerned. Instead, the focus is on the necessity of ensuring the demands are proportionate to integration into society, taking into account the possibilities and reasonable participation needs in each individual case. According to the jurisprudence of the Federal Social Court (BSG), the decisive factor is a prognosis as to which integration goals are being pursued with the requested assistance for the purchase of a motor vehicle and whether the requested integration measure is suitable and necessary for achieving these goals (LSG NRW, Judgment of June 24, 2014 – L 20 SO 388/13).
3. It is not necessary that the disabled person – as in working life – be constantly dependent on a motor vehicle practically every day; such a strict standard finds no support in the law (LSG Baden-Württemberg, judgment of 26.09.2012 – L 2 SO 1378/11). In particular, one cannot infer future behavior from past activities and thereby relativize or even deny the necessity of motor vehicle assistance.
4. Insofar as the social welfare agency argues that the family contacts asserted by the plaintiff as a reintegration goal do not meet the substantive requirements for the requested assistance because this family care is not a service for participation in community life, it misjudges the significance and scope of the case law cited in support of this view. Neither the Federal Social Court (BSG) nor the Higher Social Court of North Rhine-Westphalia (LSG NRW) considers family visits to be reintegration goals that preclude entitlement to benefits. The BSG (see judgment of December 12, 2013 – B 8 SO 18/12 R – para. 16) expressly considers family visits to be relevant reintegration goals. The Higher Social Court of North Rhine-Westphalia (LSG NRW) has denied a connection to participation in community life with regard to family visits only if a benefit recipient's primary aim is to intensify their family contacts, but not to promote or expand contacts with other people (see judgment of May 28, 2015 – L 9 SO 303/13 – para. 41). However, this does not apply to the plaintiff; for her, family visits are just one of many other desired activities.
Source: socialcourtsability.de
7. Decisions of the administrative courts on asylum law
7.1 - VG Frankfurt from April 5, 2017 - Ref. 6 L 2695/17.FA, 2 L 2483/17.F
Rejection of urgent asylum applications by a Tunisian man suspected of terrorism, subject to protective conditions
The Frankfurt Administrative Court has rejected an application by a Tunisian national, suspected of preparing a serious act of violence endangering the state, for preliminary legal protection against his deportation to Tunisia under several conditions.
Further information: www.juris.de
7.2 – Göttingen Administrative Court, Judgment of 22 March 2017 – Case No. 3 A 25/17
Granting of refugee status to Syrian refugees:
The Göttingen Administrative Court has made a fundamental decision in the supplementary cases in favor of Syrian refugees.
The plaintiffs, parents and three minor children, fled the civil war in Syria in 2015, traveling to Germany via the Balkan route, and applied for asylum here. They were granted subsidiary protection status by the Federal Office for Migration and Refugees. This status precludes their deportation to Syria. However, the legal consequences regarding their right to remain (e.g., residency status in Germany, family reunification) are not as extensive as those granted refugee status. The Federal Office denied them refugee status, arguing that the plaintiffs would not face persecution by the Syrian state if they returned to their home country.
The Administrative Court of Göttingen has ordered the Federal Office to grant refugee status to all plaintiffs.
According to the administrative court, the plaintiffs face a serious risk of persecution by the Syrian state if they return to Syria, due to their unauthorized departure, their asylum application in Germany, and their long-term residence in Western countries. Returnees are routinely interrogated, arbitrarily detained, and tortured. This applies not only to adults but also to children.
With this decision, the court is in line with many other administrative courts in Germany, while some higher administrative courts currently assess the issue of the risk to returnees differently.
The Federal Office for Migration and Refugees can file an application for leave to appeal against this decision with the Higher Administrative Court of Lüneburg.
Source: Press release from the Göttingen Administrative Court dated April 5, 2017: www.juris.de
7.3 – Higher Administrative Court for the State of North Rhine-Westphalia, Decision of 28 March 2017 – 18 B 274/17
No right of free movement for Union citizens in case of abusive commencement of employment
The Higher Administrative Court of Münster has ruled that a Union citizen cannot invoke the freedom of movement guaranteed to workers if the commencement of an employment relationship has been an abuse of rights.
Source: www.juris.de
8. Miscellaneous information on Hartz IV, social assistance, asylum law and other legal codes
The new Cologne Unemployment Gazette (KEA) has been published (Independent and biased on the side of those affected.)
A dedicated newspaper by the unemployed for the unemployed and those who might become unemployed.
Here: www.die-keas.org
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
