1. Decisions of the Federal Social Court of 12 October 2016 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 12 October 2016, B 4 AS 1/16 R
Social Court Proceedings – Appeal – Notice of Appeal in Electronic Form without a Qualified Electronic Signature – Requirements for Written Form – Signature – Reinstatement to Previous Status – Judicial Duty to Notify – Time of Initial Judicial Processing – Detectable and Assessing the Absence of a Qualified Electronic Signature
Principle (Juris):
If a file containing a notice of appeal is transmitted via the electronic court and administrative mailbox without the required qualified electronic signature, its printout by the court, regardless of whether this file contains a signature or how this signature was generated, does not comply with the requirements for the written form of a notice of appeal.
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 12.10.2016, B 4 AS 37/15 R
Basic income support for job seekers – Requirements for a review application – Limitation of retroactive benefit payments in review proceedings to one year, even in the case of repeated review applications – Constitutionality of Section 40 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) – Social court proceedings – Inadmissibility of an action for a declaration of nullity – Absence of grounds for nullity
Principle (Juris):
The regulation on the retroactive provision of benefits under the German Social Code, Book II (SGB II) in review proceedings for a maximum period of one year also applies if the binding rejection of a review decision is concerned.
Source: juris.bundessocialgericht.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Hamburg, Judgment of 23 February 2017 - L 4 AS 135/15
Unemployment benefit II – Accommodation and heating – Rent deposit – Illegality of loan repayment by offsetting – atypical case
Hamburg Higher Social Court: Benefit providers must examine atypical exceptions when granting rent deposits, as it is insufficient to solely focus on the question of the reasonableness of incurring (further) debt.
In individual cases, not only the burden of further debt, but also the repayment of the loan by offsetting it against the benefit claim may be deemed unreasonable.
Monthly repayments of a rent deposit loan may be unreasonable in individual cases.
Principle (Editor):
1. The loan decision is unlawful because the job center failed to exercise discretion in deciding on the form of the security deposit, even though it was obligated to do so. In atypical cases, the benefit provider has discretion regarding the form of the security deposit.
2. Due to the atypical nature of the case, the security deposit was not to be repaid in monthly installments of 10%, as the plaintiff's life situation was characterized by particular difficulties in physical, mental, and social terms. These difficulties included, in particular, addiction, reduced physical capacity with mobility limitations, and a long-term precarious housing situation (homelessness or public housing or accommodation in social projects). There was a significant need for support, which at times necessitated the establishment of a guardianship.
3. Benefit providers may not categorically require recipients of assistance under the German Social Code, Book II (SGB II), to repay a received security deposit loan from their unemployment benefit II for years. In atypical exceptional cases, the authority must also consider other alternatives for granting the rental deposit, such as granting a loan without repayment by offsetting (see also the Higher Social Court of North Rhine-Westphalia, judgment of 23.04.2015 – L 7 AS 1451/14), whereby the specific details (e.g., due only upon moving out of the apartment, securing by assignment of the claim for deposit repayment against the landlord) remain at the discretion of the benefit provider.
Note from the Court
: 1. An atypical case is to be assumed if the situation of the person concerned differs significantly from that of other beneficiaries and it therefore does not appear justified to burden him with the typical consequences of a loan. The Senate is convinced that it is insufficient to focus solely on the question of the reasonableness of incurring (further) debt (as stated in the instructions of the Authority for Labor, Social Affairs, Family and Integration (BASFI) regarding Section 22, Paragraphs 6 and 8 of the German Social Code, Book II (SGB II) – Granting and Recovery of Municipal Loans, dated September 14, 2011 (Ref.: SI 233/111.10-3-8-1)).
2. Firstly, in individual cases, not only the burden of further debt, but also the repayment of the loan by offsetting it against the benefit entitlement may be unreasonable. The offsetting results in the benefit recipient being subject to a 10% reduction of their benefits each month, potentially for several years, depending on the amount of the rental deposit. While this reduction in ongoing benefits may generally be acceptable, it must be examined whether it is unreasonable due to the specific circumstances of the individual case. These considerations must be taken into account in the The examination of the atypical case can simultaneously address concerns regarding the constitutionality of Section 42a of the German Social Code, Book II (SGB II) with regard to rental deposits (see Conradis, in: LPK-SGB II, Section 42a, marginal note 17; Berlin-Brandenburg Higher Social Court, decision of November 18, 2013 – L 10 AS 1793/13 B PKH; Thuringian Higher Social Court, decision of January 2, 2014 – L 9 AS 1089/13 B; Berlin Social Court, decision of September 30, 2011 – S 37 AS 24431/11 ER; the Federal Social Court also expressed doubts in its decision of June 29, 2015 – B 4 AS 11/14 R as to whether rental deposit loans unconditionally fall under the provisions of Section 42a SGB II; however, the Berlin-Brandenburg Higher Social Court sees no constitutional concerns in its judgment of 12.3.2015 – L 20 AS 261/13 and the Baden-Württemberg State Social Court, judgment of 18.9.2013 – L 3 AS 5184/12).
3. Secondly, the limitation of the assumption of an atypical case to situations in which the unreasonableness arises solely from the burden of (further) debt is evidently based on the fact that only a grant ("assistance") was considered as a possible alternative to a loan with repayment by offsetting. However, this limitation of possible alternatives is not mandatory. As the North Rhine-Westphalia State Social Court already stated in its judgment of 23 April 2015 (L 7 AS 1451/14), limiting the options to the alternatives "loan with repayment by offsetting" and "grant" is not consistent with the principle that asset accumulation through SGB II benefits should not occur (see Federal Social Court, judgment of (July 7, 2011 – B 14 AS 79/10 R with further references). Granting the rental deposit as a subsidy is not necessary in cases where the hardship is not due to the burden of (further) debt per se, but rather to the reduction of current benefits through offsetting for the purpose of repayment, and would exceed the objective of preventing unreasonable burdens. Against this background, it seems appropriate to allow further alternatives for granting the deposit. In particular, granting a loan without repayment through offsetting is conceivable (see also the Higher Social Court of North Rhine-Westphalia, loc. cit.), whereby the specific details (e.g., due only upon moving out of the apartment, securing by assignment of the claim for deposit repayment against the landlord) remain at the discretion of the benefit provider.
Source: socialcourtsability.de
2.2 – LSG Lower Saxony-Bremen, decision of April 27, 2017 (Case No.: L 9 AS 234/17 B ER):
Guiding principle Dr. Manfred Hammel
1. If accommodation within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II is occupied by several persons, the expenses are generally to be divided proportionally per capita, irrespective of age and intensity of use, as well as whether the persons concerned are members of a (joint) household.
2. The adequacy limit to be established pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), is to be determined based on the number of residents in the accommodation. It has no bearing on this if one of the residents does not receive benefits under the SGB II.
2.3 – Lower Saxony-Bremen State Social Court, 13th Senate, Judgment of 03.05.2017 – L 13 AS 5/14
Basic income support for job seekers – social law administrative procedure – revocation of an unlawful favorable administrative act – sufficient specificity of the administrative act – no possibility of rectification in legal proceedings
Principle (Juris):
The lack of sufficient definiteness of an administrative act, which has not been established at the latest by the objection decision, cannot be remedied in the legal proceedings (following BSG of 13.7.2006 – B 7a AL 24/05 R – and LSG Lower Saxony Bremen of 10.8.2011 – L 15 AS 1036/09).
Source: www.rechtsprachung.niedersachsen.de
2.4 – Berlin-Brandenburg State Social Court, decision of 30 March 2017 – L 32 AS 2146/16 B PKH – legally binding
Federal Voluntary Service – social security obligation – contribution payment – request to apply for a pension unlawful
Granting of legal aid for proceedings in which the applicant is challenging the decision and the associated request to apply for a pension – employment subject to social security contributions, Federal Voluntary Service affirmed
Exclusion of the obligation of the person entitled to basic income support to apply for a pension.
Guiding principle (Editor):
The fulfillment of the hardship criteria according to Section 4 of the Hardship Ordinance precludes a discretionary request to apply for a pension. According to this regulation, the amount of income is irrelevant, provided the employment is subject to social security contributions and occupies the majority of the individual's working time. Employment of 21 hours per week, as in the applicant's case, occupies the majority of the individual's working time. Federal voluntary service with a monthly allowance of €200 is subject to social security contributions.
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 20 April 2017 – L 32 AS 1945/15
Monthly crediting of fluctuating wages
(Juris principle)
After distributing a one-off inflow (here: tax refund) over the six-month period, no fictitious income imputation is made if the income is not readily available in the later benefit month, here through repayment of the account debit.
Source: tinyurl.com
Legal tip:
See Saxony State Social Court, judgment of March 12, 2015 – L 3 AS 360/14 – The imputation of fictitious income is not permissible, because the credit from the tax refund was never readily available to the applicant as funds during the distribution period. A tax refund to be considered as income is not readily available to cover living expenses if the tax office, at the request of the employable person in need of assistance, made the payment into a third party's account inaccessible to them.
Note:
Since August 1, 2016, Section 24 Paragraph 4 of the German Social Code, Book II (SGB II) states: "Benefits to secure subsistence can be provided as loans, [...] Sentence 1 also applies insofar as beneficiaries have prematurely consumed one-off income pursuant to Section 11 Paragraph 3 Sentence 4".
2.6 – Bavarian State Social Court, decision of 12 April 2017 – L 11 AS 245/17 NZB
The appeal against the refusal of leave to appeal will be continued as an appeal on points of law.
Principle (Editor)
1. The issue in dispute is whether the widow's pension paid for the quarter following the death of the deceased should be fully counted as income for the purposes of calculating benefits for securing subsistence under the German Social Code, Book II (SGB II). Despite contrary professional instructions from the Federal Employment Agency (11.84), the defendant has filed an appeal against the denial of leave to appeal on the grounds of fundamental importance and/or because the Nuremberg Social Court (SG) deviated from the higher court's jurisprudence (here, the Hessian State Social Court, decision of December 21, 2012 – L 4 SO 340/12 B).
2. The appeal is admissible due to its fundamental importance.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Cologne Social Court, decision of April 28, 2017 (file no.: S 25 AS 1170/17 ER):
Principle by Dr. Manfred Hammel
1. On the derivation of a right of residence based on the school attendance of the minor children of a Bulgarian applicant from Article 10 of Regulation (EU) 492/2011 and on the incompatibility with European law of the exclusion rule currently arising from Section 7 Paragraph 1 Sentence 2 No. 2c) SGB II.
2. The right of residence in this regard should not be made dependent on the existence of sufficient means of subsistence.
3. This applies particularly if the school attendance of the two children has been firmly established for four years, and if, due to the mother's severe mental illness, it is rather unlikely that she will be able to return to her home country at all.
3.2 – Social Court Reutlingen, decision of April 28, 2017 (file no.: S 7 AS 770/17 ER):
Principle by Dr. Manfred Hammel:
An integration administrative act issued pursuant to Section 15 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II), is unlawful if it also links the applicant's obligations to fulfill unreasonable or insufficiently specific duties, such as using the "app-based job portal" and unspecified "websites," to threats of sanctions. The use of such IT technologies requires specific equipment and specialized knowledge on the part of the applicant, which a job center cannot indiscriminately assume.
3.3 – Social Court Magdeburg, judgment of April 5, 2017 (Case No.: S 16 AS 2544/13):
Guiding principle Dr. Manfred Hammel
1. Even if a payment of maternity allowance pursuant to Section 24i SGB V was a benefit for two past months and if no further corresponding payments have been made, this benefit constitutes a payment of current income within the meaning of Section 11 Paragraph 2 SGB II.
2. Current income is income that is based on the same legal grounds and is received regularly.
3. In the case of one-off payments within the meaning of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II), the transaction is limited to a single payment.
4. Maternity pay is a benefit that is to be provided regularly on a monthly basis by the statutory health insurance providers.
5. The amount received here shall be taken into account as reducing the need in the month in which the sum in question is received (§ 11 para. 2 sentence 1 SGB II).
3.4 – Bremen Social Court, decision of March 10, 2017 (file no.: S 41 AS 130/17 ER):
Guiding principle Dr. Manfred Hammel
1. The aim of the reporting requirement (§ 32 para. 1 sentence 1 SGB II) is not to reduce or even eliminate the entitlement of the persons required to report to unemployment benefit II by means of a high number of missed reports.
2. Sections 31 to 32 of the German Social Code, Book II (SGB II) are not penal provisions under which certain penalties are "imposed" due to specific culpable conduct, but rather the legal consequences of breaches of duty, because job centers are not permitted to enforce a reporting requirement by means of administrative coercion.
3. If the job center, when issuing a reduction notice based on Section 32 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), already had to assume that the objective to be achieved with such a notice – namely, to bring about the commencement of gainful employment – could no longer be achieved, then this reduction notice must be considered unlawful.
3.5 – SG Landshut, judgment of April 18, 2017 – S 7 AS 465/1
Unemployed benefit recipient must prove job application
A recipient of benefits must prove that he has applied for a position suggested by the job center, otherwise he risks a reduction in his unemployment benefits.
Court Note:
The benefit recipient must ensure and prove receipt of the application. This can be done, for example, by sending the application via registered mail with return receipt requested or by calling the potential employer to confirm receipt. Simply sending it by regular mail is not sufficient.
Source: Press release from the Social Court of Landshut dated May 15, 2017: www.juris.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Hamburg State Social Court, Judgment of 30 March 2017 – L 4 SO 40/16
Principle (Editor):
The applicant is not entitled to basic income support for the elderly under Chapter 4 of the German Social Code, Book XII (SGB XII), because the asset limit was exceeded. Assets accumulated from social benefits do not constitute a hardship case under Section 90, Paragraph 3, Sentence 1 of the SGB XII.
Source: socialcourtsability.de
Legal tip:
Bavarian State Social Court, judgment of 21 November 2014 – L 8 SO 5/14 – Even income attributable to unused social assistance benefits must be used for current living expenses in accordance with the principle of subsidiarity and the fact that social assistance is only granted as a last resort (§ 2 SGB XII).
4.2 – Berlin-Brandenburg State Social Court, decision of 5 April 2017 – L 15 SO 353/16 B ER, legally binding:
EU citizen – exclusion from benefits – five-year period – substantiation
Principle (Juris):
The five-year stay in the federal territory pursuant to Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) does not necessarily have to be a legal stay.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Asylum Law
5.1 – Hamburg State Social Court, Judgment of 13 April 2017 – L 4 AY 4/16
According to § 6b AsylbLG in conjunction with § 18 SGB XII, benefits could only be granted once the social welfare provider is aware that the eligibility requirements are met.
Guiding principle (Editor):
1. According to Section 6b of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 18 Paragraph 1 of the German Social Code, Book XII (SGB XII), benefits under the AsylbLG only commence when the benefit provider becomes aware that the prerequisites for the benefit are met. Therefore, no entitlement to benefits exists for the period prior to this awareness.
2. Knowledge within the meaning of Section 18 Paragraph 1 of the German Social Code, Book XII (SGB XII) requires positive knowledge of all facts that enable the benefit provider to provide the benefit. It is not necessary for the benefit provider to already know the specific amount or the exact scope of the benefit (see Federal Social Court (BSG), judgment of February 2, 2012 – B 8 SO 5/10 R). For the benefit to commence, it is sufficient if the benefit provider has knowledge of the need as such, i.e., firstly, that the need exists and secondly, that the recipient is in need of assistance (see Higher Social Court of North Rhine-Westphalia (LSG NRW), judgment of August 28, 2014 – L 9 SO 28/14, referring to Federal Social Court (BSG), judgment of November 10, 2011 – B 8 SO 18/10 R). The knowledge must relate to the specific individual case and is not conveyed solely by the fact that the emergence of a need for social assistance is "common" in certain situations (cf. LSG NRW aaO; Sächsisches LSG, judgment of 6.3.2013 – L 8 SO 4/10).
3. Finally, the defendant's knowledge cannot be presumed within the framework of a social security restitution claim. A social security restitution claim requires that the social security institution has breached a duty incumbent upon it by law or a social security relationship, in particular the duty to provide advice (regarding the requirements for a restitution claim, see Federal Social Court [BSG], judgment of April 15, 2008 – B 14 AS 27/07 R and judgment of January 18, 2011 – B 4 AS 99/10 R). There is no evidence of such a breach of duty here.
Source: socialcourtsability.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Higher Administrative Court of Lüneburg, 8th Senate, decision of 04.04.2017, 8 PA 46/17
End of the continued validity of the residence requirement for a residence permit pursuant to Section 51 Paragraph 6 of the Residence Act 2004)
Principle (Juris):
The residence restriction imposed on a residence permit and continuing to apply after the expiry of the validity period of this residence permit pursuant to Section 51 Paragraph 6 of the Residence Act (AufenthG) is regularly implicitly revoked by the fact that a subsequently extended or newly issued residence permit is again subject to a residence restriction.
Source: www.rechtsprachung.niedersachsen.de
6.2 – “Trips to extracurricular learning locations related to lessons” are not school trips – unlawful, says the Hildesheim Social Court – Job center must pay for class trip
. The Northeim Job Center must pay for a class trip to Barcelona for a 19-year-old student. The Hildesheim Social Court ordered the Northeim authority to do so. The student, who attends a comprehensive school, had sued the agency to cover the costs of €575 – and won her case.
Read more at: www.goettinger-tageblatt.de
6.3 – According to a newspaper report, recipients of Hartz IV benefits have a strong case before the social courts.
Almost 40 percent of lawsuits related to basic income support were decided in their favor, either wholly or partially, in 2016, as reported by the "Saarbrücker Zeitung" on Saturday, citing figures from the Federal Ministry of Labor in response to an inquiry from Left Party leader Katja Kipping. According to the report, nearly 121,000 lawsuits were finally decided in 2016, 39.9 percent of which were in favor of the benefit recipients. This corresponds to the level of the previous year.
Continue at: www.freenet.de
6.4 – Job centers must help out – More and more Hartz IV recipients are using loans
For many people in Germany, Hartz IV benefits are barely enough to live on. They therefore have to take out loans for purchases such as clothing or a new refrigerator. The Left Party sharply criticizes this practice.
More information: www.n-tv.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
