1. Decisions of the Federal Social Court of 24 May 2017 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 24.05.2017 – B 14 AS 32/16 R
Basic income support for job seekers – consideration of income – withholding of part of wages by the employer – employer loan to finance a motor vehicle – no consideration of debt repayment – readily available funds
Does the employer's monthly deduction of 100 euros for the repayment of an employer loan used to finance a motor vehicle reduce the income to be considered under the German Social Code, Book II (SGB II)?
Guideline (Editor):
Loan repayment installments are not tax-deductible from income.
Source: www.juris.de
1.2 – BSG, Judgment of 24.05.2017 – B 14 AS 16/16 R
Regarding the usability of an owner-occupied residential property of unreasonable size – including the possibility of granting a loan under Section 24 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), if its use is refused
Guiding principle (Editor):
If the owners of a large, self-occupied house refuse any attempt to utilize it, a loan-based benefit under Section 24 Paragraph 5 of the German Social Code, Book II (SGB II) is not possible.
Source: www.juris.de
2. Decisions of the Federal Social Court of 08.03.2017 on social assistance (SGB XII)
2.1 – Federal Social Court, Judgment of 8 March 2017 – B 8 SO 20/15 R
Social court proceedings – necessary joinder of the supra-regional social assistance provider – social assistance – integration assistance – right to provide benefits – binding effect of agreements between the local social assistance provider and the supra-regional social assistance provider – jurisdiction to conclude agreements – assumption of remuneration pursuant to Section 75 Paragraph 4 of the German Social Code, Book XII
Reimbursement for accommodation in care facilities in North Rhine-Westphalia: Contracts are invalid
According to the Federal Social Court (BSG), the supra-regional social welfare agencies in North Rhine-Westphalia have for years concluded invalid and therefore void contracts regarding the remuneration of residential care facilities for disabled people. This is because, under federal law, the local, and not the supra-regional, social welfare agency is generally authorized to conclude such remuneration agreements with the operators of residential care facilities.
An exception would only exist if state law authorizes supra-regional social welfare providers to conclude contracts. However, this is not apparent in North Rhine-Westphalia.
More information: www.juraforum.de
3. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – State Social Court of Baden-Württemberg, Judgment of 24 January 2017 – L 9 AS 2069/15
Unemployment benefit II – additional needs due to costly diet – lactose intolerance – consideration of the recommendations of the German Association for Public and Private Welfare – no additional costs – reasonableness of savings on other food items – de minimis threshold
No additional allowance for Hartz IV recipients with lactose intolerance.
Guiding principle (Editor):
Lactose intolerance does not justify additional needs due to costly diets according to § 21 para. 5 SGB II.
Source: socialcourtsability.de
3.2 – Baden-Württemberg State Social Court, Judgment of 06.12.2016 – L 9 AS 4043/13
The plaintiff's single-family house is not appropriate within the meaning of Section 12 Paragraph 3 Sentence 1 No. 4 SGB II.
Principle (Juris):
The appropriateness of an owner-occupied residential property pursuant to Section 12 Paragraph 3 No. 4 of the German Social Code, Book II (SGB II) is determined (solely) by the living space limits of the Second Housing Construction Act (2. WoBauG) and not by compliance with the ceiling height required for habitable rooms according to the Living Space Ordinance or the current state building code. Subsequent amendments to the state building code are not to be taken into account as long as the continued use of the rooms is neither prohibited under building law nor significantly restricted.
Source: socialcourtsability.de
3.3 – LSG Hamburg, judgment of April 13, 2017 – L 4 AS 384/16
Regarding the reimbursement of costs for further training undertaken by the plaintiff to obtain a welder's certificate – self-procured training measure – education voucher – no reduction of discretion to zero
Principle (Editor)
1. The fact that the defendant did not issue the plaintiff an education voucher does not preclude the claim. While Section 81 Paragraph 4 of the German Social Code, Book III (SGB III) stipulates that the fulfillment of the funding requirements is certified by issuing an education voucher, which must be presented to the training provider before the start of the course, this does not apply in this case. However, it is an expression of a general legal principle in social law that, in cases of self-procurement of urgently needed social benefits (i.e., in urgent and emergency situations) as well as in cases of unlawful denial of benefits, the costs of the self-procured benefit must be reimbursed (cf. Federal Social Court [BSG], judgment of 6 August 2014 – B 4 AS 37/13 R, and judgment of 23 May 2013 – B 4 AS 79/12 R; see also Higher Social Court [LSG] Mecklenburg-Vorpommern, judgment of 24 May 2016 – L 2 AL 54/10; Higher Social Court [LSG] Hamburg, judgment of 21 January 2015 – L 2 AL 37/12, citing Section 15 Paragraph 1 of the Ninth Book of the Social Code).
2. However, a prerequisite for a claim for reimbursement of the costs of a self-procured service is that an entitlement to this service existed. Only if an entitlement to the service existed can the claim for reimbursement of costs replace the so-called primary entitlement in the case of self-procurement (see Baden-Württemberg Higher Social Court, judgment of May 20, 2016 – L 8 AL 1234/15; Mecklenburg-Western Pomerania Higher Social Court, ibid.; Hamburg Higher Social Court, ibid.). Here, however, the plaintiff had no entitlement to funding for the training measure undertaken.
Source: socialcourtsability.de
3.4 – Schleswig-Holstein State Social Court, decision of 15 December 2016, L 6 AS 223/16 B ER:
No ALG II (unemployment benefit II) in the case of merely de facto part-time studies, an article by attorney Helge Hildebrandt
Some state social courts have recognized entitlement to unemployment benefit II (ALG II) even in cases of merely de facto part-time studies, i.e., when a full-time course of study cannot actually be pursued full-time – for example, due to personal, family, or health reasons. The Schleswig-Holstein State Social Court did not follow this precedent. More information here:
Legal tip:
Berlin-Brandenburg State Social Court, decision of 29.09.2015 – L 31 AS 2074/15 B ER legally binding
Part-time studies – exclusion from benefits – weighing of consequences – preliminary legal protection
Principle (Juris)
1. An applicant who claims to be pursuing part-time studies may only be granted basic income support in preliminary legal proceedings within the framework of a balancing of interests.
2. If students were allowed to abstractly withdraw their eligibility for BAföG funding by reducing their studies to part-time and thus benefit from SGB II benefits, the funding limits (age limit, maximum funding period, repayment obligation) of BAföG would be practically ineffective.
3.5 – Hessian State Social Court, Judgment of 27 March 2017 – L 9 AS 331/15 – legally binding
Section 79 Paragraph 1 of the German Social Code, Book II (SGB II) does not violate the constitutionally enshrined prohibition of retroactivity.
Principle of the lower court:
1. Claims for reimbursement by the providers of basic income support for job seekers against pension insurance institutions under Section 40a Sentence 2 of the German Social Code, Book II (SGB II), are generally precluded by the provision of Section 79 Paragraph 1 of the SGB II in the case of benefits paid by the pension insurance institution to the beneficiary in the period from October 31, 2012 to June 5, 2014.
2. The providers of basic income support for job seekers cannot invoke the constitutional prohibition of retroactivity in relation to Section 79 Paragraph 1 of the German Social Code, Book II (SGB II), which applies retroactively, when performing their public duties.
Source: socialcourtsability.de
3.6 – North Rhine-Westphalia State Social Court, decision of 15 May 2017 – L 19 AS 772/17 B ER – legally binding:
Assumption of rent arrears by the basic income support provider – update of a coherent concept approximately every 2 years
Principle (Editor)
1. The assumption of rent arrears for an unsuitable apartment within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is generally not justified under Section 22 Paragraph 8 of the SGB II (cf., for example, Senate decision of March 3, 2012 – L 19 AS 2233/11 B ER, referring to Federal Social Court (BSG) judgment of June 17, 2010 – B 14 AS 58/09 R).
2. Furthermore, the assumption of the rent arrears is not justified because it is not foreseeable that the applicants will be able to secure payment of the full housing costs in the future. Given the considerable difference between the reasonable and the actual housing costs, and the fact that the applicants' rent arrears amount to a sum that cannot be explained solely by this difference, it cannot be assumed that they will be able to cover the difference from their standard benefit in the future. In addition, if a loan were granted pursuant to Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), it would have to be repaid immediately upon disbursement with a monthly deduction of 10% of the standard benefit pursuant to Section 42a Paragraph 2 of the SGB II, meaning that the full standard benefit would not even be available in the future. No concrete prospect of a significant improvement in their financial circumstances has been demonstrated, nor is any otherwise apparent.
3. A sound concept must be updated (approximately) every two years (Social Court Dortmund, March 17, 2017 – S 19 AS 4276/16). This interval corresponds to the normative requirements for both the updating of qualified rent indices pursuant to Section 558b Paragraph 2 Sentence 1 of the German Civil Code (BGB) and for updating the determination of reasonable rent limits by statute pursuant to Section 22c Paragraph 2 of the German Social Code, Book II (SGB II). There is initially no objectively plausible reason to impose stricter or less stringent requirements regarding the updating of "sound concepts" (see, presumably, the decision of the Higher Social Court of Lower Saxony-Bremen of December 5, 2016 – L 15 AS 257/16 B ER).
Source: socialcourtsability.de
3.7 – Lower Saxony-Bremen State Social Court, 7th Senate, Decision of 19 May 2017, L 7 AS 5/16 B
Principle (Juris)
1. A copy within the meaning of the lawyers' fee law according to No. 7000 VV RVG is only in the version of the Cost Law Modernization Act (nF) the reproduction of an original on a physical object, for example on paper, cardboard or foil.
2. According to No. 7000 No. 1 letter a VV RVG nF, no document fee is incurred for the mere scanning of certificates, documents or other documents.
3. No. 7000 VV RVG is not unconstitutional, in particular there is no violation of Art. 20a GG.
Source: www.rechtsprachung.niedersachsen.de
3.8 – LSG Munich, decision of 27.04.2017 – L 7 AS 277/17 B ER
Justified appeal in preliminary legal protection proceedings with the obligation to make provisional payments
Principle (Juris)
1: A letter received during the current objection period is to be interpreted, according to the principle of most-favored-nation treatment, as an objection even against a decision that has supposedly become legally binding. (Editorial principle)
2. The failure to appear before the respondent may not be used to conclude that there is a supposedly non-existent need for assistance. Linking an initial appearance to a determination of need for assistance is inappropriate. A decision must then be made based on the available documentation or the respondent must be requested to cooperate. (Editorial note)
3. Even a decision designated as a remedial decision is only effective if it fully complies with the objection. If this is not the case, it is at best a partial remedial decision, with the consequence that the other pending preliminary proceedings must be concluded. (Editorial principle)
4. As part of the balancing of interests and taking into account any breach of cooperation obligations, provisional benefits under the German Social Code, Book II (SGB II) are to be granted. These are subject to limitations, in that costs for accommodation and heating are not to be covered due to the lack of urgency (i.e., the absence of any threat to the accommodation), and the standard benefit is to be granted for a limited period and with a reduction to avoid prejudging the main issue. (Editorial note)
Keywords:
benefit, household, approval, preliminary legal protection, remedial notice, need for assistance, single-family home, documents, proof
Source: www.gesetze-bayern.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Dortmund, Judgment of 16 May 2017 – S 19 AS 2534/15
Hartz IV: Job centers argue over school fees for visiting children – children of separated parents
Court Notice:
School fees for children of long-term unemployed individuals must be paid by the job center in whose district the students are habitually resident. This also applies if, on the cut-off date at the beginning of the school semester, they are staying with the parent with visitation rights in the jurisdiction of a different job center.
Guiding principle (Editor):
School fees are not to be taken into account in the household needs of the parent entitled to visitation.
Source: socialcourtsability.de
4.2 – SG Augsburg, decision of 16.05.2017 – S 8 AS 401/17
Suspension of the statute of limitations due to pending settlement negotiations
Principle (Juris):
Suspension of the time limit for an action for failure to act during settlement negotiations in accordance with the provisions of the German Civil Code (BGB).
Source: www.gesetze-bayern.de
4.3 – Social Court Nordhausen, Judgment of 16 January 2017 – S 31 AS 2363/14 – legally binding
Principle (Juris)
1. A claim for exemption from the attorney's fee claim under Section 63 of the German Social Code, Book X (SGB X) is excluded if the client could raise the statute of limitations defense at the time of the application for reimbursement of costs (following S 31 AS 818/14). This applies regardless of whether the client would currently raise the statute of limitations defense.
2. The defendant is entitled to refuse reimbursement of the fees and expenses of the legal representative, citing the duty to mitigate costs.
3. There is much to suggest that claims under Section 63 of the German Social Code, Book X (obiter dictum), should be subject to a three-year limitation period.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Employment Promotion (SGB III)
5.1 – 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
Suspension of unemployment benefit entitlement – waiting period for refusal of a vocational integration measure – offer outside of an integration agreement
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.
Note: Habel: On the imposition of a waiting period for refusing a measure that is not the subject of an existing integration agreement. Published in NZS 2017, 398
Regarding the imposition of a waiting period if a measure is refused that is not the subject of an existing integration agreement
SGB III § 3 Para. 2, § 5, § 37, § 45, § 159 Para. 1 Sentence 2 No. 4
1. The employment agency can offer a vocational integration measure to an unemployed person even outside of an existing integration agreement.
2. Active labor market policy measures provided on the basis of an integration agreement exist alongside those provided on the basis of Section 5 of the German Social Code, Book III (SGB III); there is no priority rule.
3. The provision for a waiting period under Section 159 Paragraph 1 Sentence 2 No. 4 of the German Social Code, Book III (SGB III) does not differentiate according to the basis on which the rejected measure was offered.
4. A waiting period also applies if an unemployed person refuses a measure that is not the subject of an integration agreement.
(Editorial guidelines)
Saxon State Social Court, Judgment of 9 February 2017 – L 3 AL 274/15
5.2 – Hamburg State Social Court, Judgment of 05.04.2017 – L 2 AL 68/16
The plaintiff seeks higher unemployment benefits, taking into account her income from dependent employment earned after her irrevocable release from work, or the remuneration earned in the year before the release (denied).
Principle (Editor):
In the assessment period according to Section 150 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), only remuneration paid on the basis of employment within the meaning of social security law can be taken into account. This does not include remuneration paid for periods after a period of leave from work (as expressly stated most recently by the Bavarian State Social Court, decision of July 18, 2016 – L 10 AL 133/16 NZB, and also by the Federal Social Court, decision of April 30, 2010 – B 11 AL 160/09 B).
Source: socialcourtsability.de
6. Decisions of the social courts on employment promotion (SGB III)
6.1 – Social Court Braunschweig of 07.03.2017 – S 9 AL 146/13
Legal principle according to attorney Michael Loewy:
A benefit recipient is not considered to have grossly negligently breached their duty to inform the Federal Employment Agency of their habitual residence, provided they have notified the job center of their move. It was the job center's responsibility to inform the Federal Employment Agency of the move.
Source: www.anwaltskanzlei-loewy.de
7. Decisions of the State Social Courts on Social Assistance (SGB XII)
7.1 – Berlin-Brandenburg State Social Court, decision of 27 March 2017 – L 15 SO 333/16 B ER – legally binding
claim for an injunction – electricity debts – discretion
The applicant seeks, by way of preliminary legal protection, an order compelling the respondent to cover outstanding electricity costs in the amount of 13,450.39 euros as a non-repayable grant, or alternatively as a loan (here denied)
Principle (Editor)
1. Section 36 of the German Social Code, Book XII (SGB XII) does not grant a mandatory entitlement to benefits, but only an entitlement to a discretionary decision free from errors of judgment, which is limited in cases of imminent homelessness – thus also in the applicant's case. For the discretionary decision regarding the assumption of energy cost arrears, all circumstances of the individual case are relevant within the framework of a comprehensive overall assessment. The following must be taken into account: the amount of the arrears, their causes, the composition of the group of people potentially threatened with eviction (or energy disconnection), the applicant's past conduct (first-time or repeated arrears, their own efforts to settle accrued arrears), and a discernible willingness to help themselves (State Social Court (LSG) for the State of North Rhine-Westphalia, decision of January 17, 2014 – L 9 SO 532/13 B ER). Accordingly, the respondent's discretionary decision in the present case is not objectionable.
2. The amount of the arrears is enormous and cannot be plausibly explained, even considering the arguments put forward by the applicant, namely, in particular, the heavy burden caused by his mentally ill sons and his own illness. The applicant should have switched back to coal heating much earlier, and not only after years in which electricity debts repeatedly accumulated.
Source: socialcourtsability.de
7.2 – North Rhine-Westphalia State Social Court, Judgment of 23 March 2017 – L 9 SO 538/16 – The appeal is granted
Regarding the question of whether the pocket money earned during the Federal Voluntary Service (here amounting to EUR 200.00) should be considered income.
The hardship clause of Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) applies to pocket money earned within the framework of the Federal Voluntary Service. Section 82 Paragraph 3 Sentence 3 of the SGB XII allows the social welfare agency to waive income assessment in whole or in part in order to avoid unequal treatment and undue hardship.
Principle (Juris):
Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) is to be applied to pocket money earned within the framework of the Federal Voluntary Service, with the result that the entire monthly earnings are to be fully taken into account in accordance with Section 1 Paragraph 7 Sentence 1 of the German Social Code, Book II (Alg II-VO) as amended from 01.01.2013 to 31.07.2016, and from 01.08.2016 onwards in accordance with Section 11b Paragraph 2 Sentence 6 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
8. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
8.1 – Berlin Administrative Court, Judgment of 16 May 2017 – 4 K 572.16 A, 4 K 683.16 A
Refugee status for Syrian “conscription evaders”
The Berlin Administrative Court has ruled in two landmark judgments that Syrian men who have evaded military service by fleeing Syria can claim refugee status under certain conditions.
An application for leave to appeal to the Higher Administrative Court of Berlin-Brandenburg is admissible against the judgments.
Source: Press release of the Berlin Administrative Court No. 18/2017 dated May 22, 2017
Legal tip:
Göttingen Administrative Court, 3rd Chamber, judgment of March 22, 2017, 3 A 25/17:
Refugee status for Syrian family; draft evasion; minor children; domestic flight alternative.
1. Returning Syrian asylum seekers currently face a considerable probability of political persecution due to (illegal) departure, asylum application, and a stay in Western countries that is not merely short-term, regardless of prior persecution (following Sigmaringen Administrative Court, judgment of January 31, 2017 – A 3 K 4482/16 –, juris, para. 27 – 113).
2. Furthermore, returnees of military age, regardless of prior persecution, face a considerable risk of being subjected to human rights violations in Syria. It is equally likely that returnees of military age are at risk of being drafted into military service in a manner that fulfills the requirements of Section 3a Paragraph 2 No. 5 of the Asylum Act.
3. Refugee status should also be granted to Syrian minor children – as well as wives – due to the risk of returneeship resulting from reflexive persecution.
Source: www.rechtsprachung.niedersachsen.de
8.2 – How differently job centers reduce the subsistence level for Hartz IV recipients
EXCLUSIVE: We reveal how unequally the more than 400 job centers treat the unemployed
Read more: correctiv.org
8.3 – New information brochure on the topic “Confronted with the rejection notice.
What now?
Continue reading: www.frnrw.de
8.4 – Chemnitz Administrative Court, judgments of 11 May 2017, 7 K 3769/16.A and 7 K 2874/16.A
No subsidiary protection for asylum seekers from Libya in view of a possible internal conflict
The starting point for the decisions made by the 7th Chamber of the Chemnitz Administrative Court on May 11, 2017, is Section 4 Paragraph 1 Sentence 1, Sentence 2 Number 3 of the Asylum Act. According to this provision, a foreigner, insofar as he is not already recognized as a person entitled to asylum or as a refugee within the meaning of Section 3 of the Asylum Act, is entitled to subsidiary protection if he can present compelling reasons for believing that he faces a serious threat of harm in his country of origin. Serious harm is defined as a serious individual threat to the life or physical integrity of a civilian as a result of indiscriminate violence in the context of an international or internal armed conflict.
Regardless of the question of whether an internal armed conflict can still be assumed to exist across Libya, the Chamber assumes in its decision that, without the addition of special personal circumstances increasing the risk, there is currently no serious and individual threat to life or physical integrity as a result of arbitrary violence for civilians, at least in the greater Tripoli area, so that an internal flight alternative exists for persons from other parts of the country as well.
For such a serious individual threat to life or physical integrity as a civilian, it is not sufficient if the internal armed conflict leads to a permanent danger to the population.
Further information: www.justiz.sachsen.de
8.5 – Here are the short communications 4/2017 (May 2017) from SOCIAL LAW JUSTAMENT.
The issue contains two court decisions by the Hessian State Social Court in the area of the German Social Code, Book II (SGB II).
One decision (Hesse State Social Court, March 29, 2017 - L 6 AS 334/16) deals with an unauthorized absence from the place of residence in the month of application. The Hesse State Social Court awarded benefits in this case. The legal reasoning goes beyond the specific circumstances of the individual case. Leave to appeal was granted.
The other decision (LSG Hessen of 11.10.2016 – L 7 AS 139/16) deals with the question of whether migrants can receive reimbursement from the job center for the often high costs of obtaining or renewing a passport.
Download:
www.socialrecht-justament.de
www.socialrecht-justament.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
