1. Decisions of the Federal Social Court of 08.02.2017 on basic income support for job seekers (SGB II)
1.1 – BSG, judgment of 02/08/2017 – B 14 AS 10/16 R
The deduction of dog liability insurance premiums from the income to be considered is controversial.
Guiding principle (Editor)
1. Contributions to a dog liability insurance policy required by a state dog law are not to be deducted from the income to be taken into account as insurance contributions pursuant to Section 11b Paragraph 1 Sentence 1 No. 3 SGB II.
2. Insofar as income is to be generated from keeping a dog, the eligibility for consideration of any insurance expenses is assessed according to Section 11b Paragraph 1 Sentence 1 No. 5 of the German Social Code, Book II (SGB II): either as compulsory insurance or as necessary expenses within the meaning of Section 11b Paragraph 1 Sentence 1 No. 5 of the SGB II and, if applicable, Section 3 Paragraph 2 of the German Regulation on Unemployment Benefit II (Alg II-V), and not according to the provision of Section 11b Paragraph 1 Sentence 1 No. 3 of the SGB II, which privileges the use of income in the private sphere.
Source: socialcourtsability.de
1.2 – BSG, judgment February 8, 2017 – B 14 AS 22/16 R
Maintenance payments that are not legally established are not to be deducted from the income to be taken into account under the German Social Code, Book II (SGB II).
Guiding principle (Editor)
: Maintenance-related expenses are only deductible to the extent that they 1. have actually been incurred, 2. are based on a legal obligation, and 3. the maintenance obligation is legally established (see in detail BSG judgment of 9 November 2010 – B 4 AS 78/10 R; BSG judgment of 12 October 2016 – B 4 AS 38/15 R).
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 Lower Saxony-Bremen, 11th Senate, Judgment of 19 May 2017 – L 11 AS 638/13
Guiding principles (Juris)
1. Since the abolition of compulsory insurance on January 1, 2011, minimum contributions for voluntary pension insurance constitute an insurance that is appropriate in principle and amount within the meaning of Section 11b Paragraph 1 Sentence 1 No. 3 Half-Sentence 1 SGB II.
2. When determining the allowance according to Section 1 Paragraph 2 of the German Social Code, Book II (SGB II) (here: allowance for relatives who live in a household with the person in need of assistance), only the proportionate costs of accommodation and heating are to be taken into account, not the full costs, even if the relative bears them in full.
3. If the relative provides the recipient of assistance with in-kind support amounting to their share of the accommodation and heating costs by covering these costs, there is no uncovered need in this respect. The presumed support payment pursuant to Section 9 Paragraph 5 of the German Social Code, Book II (SGB II) is reduced by the amount of in-kind support provided.
Source: www.rechtsprachung.niedersachsen.de
2.2 – Bavarian State Social Court, Judgment of 24 April 2017 – L 7 AS 571/16
Guiding principle (Editor):
On the legality of an administrative act replacing the integration agreement (affirmed here).
Source: socialcourtsability.de
2.3 – Bavarian State Social Court, Judgment of 25 April 2017 – L 11 AS 873/15
Costs for finding accommodation – housing procurement costs § 22 para. 6 sentence 1 SGB II – costs for newspaper advertisements or viewing trips – costs in particular for notepad, postage, telephone, copies and newspapers or their procurement – costs of a college-ruled notebook
Guiding principle (Editor)
1. Costs for newspaper advertisements or viewing trips are conceivable and eligible for reimbursement as housing procurement costs.
2. Regarding further costs, in particular for notepads, postage, telephone, copies and newspapers or their procurement, it is disputed whether these are to be taken into account within the framework of Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (affirmative for internet research, telephone calls and the procurement of newspapers: Piepenstock in jurisPK-SGB II, as of November 28, 2016, Section 22, marginal note 215). This should only be affirmed in exceptional cases, as costs for newspapers for advertising research or telephone costs for contacting potential landlords should regularly be covered by the standard allowance (cf. LSG North Rhine-Westphalia, decision of 07.02.2011 – L 19 AS 185/11 B; decision of the Senate of 16.03.2017 – L 11 AS 121/17 B ER; Luik in Eicher, SGB II, 3rd edition, § 22 Rn 203).
3. In any case, the defendant fully covered the costs for the notebook (EUR 1), two fax fees (EUR 2), and postage and copies (EUR 1.60). The fact that telephone costs were only considered up to EUR 30 is not objectionable. While it could be assumed that telephone costs are not already covered by the standard allowance, the claimed costs of EUR 75 are in no way plausible or substantiated.
Source: socialcourtsability.de
Legal tip:
SG Dortmund, judgment of 01.08.2016 – S 31 AS 3579/14 – The basic income support provider is obliged to guarantee the travel and/or overnight accommodation costs as housing procurement costs, because its cost reduction request caused the plaintiff to terminate her previous tenancy and move.
2.4 – Mecklenburg-Western Pomerania State Social Court, Judgment of January 26, 2017 – L 8 AS 272/12 – The appeal is granted.
Unemployment Benefit II
Accommodation and Heating – Additional Operating Cost Claim for a No Longer Occupied Apartment
Receipt of Benefits During the Period in Arrears and at the Time Due Date
Relevant Link Under Social Security Law Between Additional Claim and Need for Accommodation and Heating in the Month Due
Principle (Juris)
1. A claim for additional operating costs for an apartment that is no longer occupied is to be taken into account as a current need in the month of payment for the costs of accommodation and heating pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if the person entitled to benefits was receiving benefits during the period in which the costs were actually incurred and is still receiving benefits at the time the claim is due.
2. The connection relevant under the law on securing existence between the subsequent claim and the accommodation-related need in the month of due date can be seen in the fact that the person in need of assistance received basic income support during the time when the operating costs were actually incurred.
Source: www.landesrecht-mv.de
Legal tip:
LSG Mecklenburg-Vorpommern, judgment of 24.02.2016 – L 10 AS 461/12 – 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 pursuant to Section 22 Paragraph 1 Sentence 1 SGB 2, 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 pursuant to Section 22 Paragraph 4 SGB 2 with prior approval from the basic income support provider.
Confirmed by the Federal Social Court (BSG), judgment of March 30, 2017 – B 14 AS 13/16 R – job centers must also cover utility bill arrears for the old apartment after a move. The reason for the move is irrelevant.
2.5 – Berlin-Brandenburg State Social Court, decision of 22 May 2017 – L 31 AS 1000/17 B ER – legally binding
Principle (Juris):
A non-German minor EU citizen living with his father and holding a right of residence in Germany does not confer a right of residence on his unmarried mother under Section 28 Paragraph 1 Sentence 1 Number 3 of the Residence Act.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Dessau-Roßlau Social Court, Judgment of 26 January 2016 – S 30 AS 2955/12
Regarding the question of whether the administrative regulation of the Wittenberg district for granting benefits for accommodation and heating under the Social Code (SGB) Book Two and Book Twelve (II and XII) is based on a coherent concept (here answered in the negative) – not the entire Wittenberg district can be considered a relevant comparison area
Failure to meet the requirements for a coherent concept of the basic income support provider
Guiding principle (Editor)
Basic income support for job seekers: Costs of accommodation; Requirements for a coherent concept for determining the appropriateness of accommodation costs in the district of Wittenberg.
Source: socialcourtsability.de
Legal tip:
See also S 30 AS 2355/12 of 26.01.2016; S 30 AS 1590/13 and S 30 AS 1609/13 of 23.08.2016
3.2 – Nuremberg Social Court, Judgment of 23 November 2016 – S 13 AS 665/16 – legally binding – appeal pending before the Bavarian State Social Court – L 11 AS 902/16
Principle (Editor):
The death benefit is not to be considered income (contra: Hesse State Social Court, of 21 December 2012 – L 4 SO 340/12 B ER)
Note to the Court
1. According to Section 11a Paragraph 3 of the German Social Code, Book II (SGB II), benefits provided under public law for a specifically stated purpose are only to be considered income to the extent that the benefits under the SGB II serve the same purpose in the individual case. The death benefit for a quarter of a year from the pension insurance is a benefit based on public law. The term "death benefit for a quarter of a year" already indicates the purpose for which this benefit is provided. It is intended to serve the purpose of satisfying the special needs of the surviving spouse that inevitably arise during this quarter of the year following the death of the deceased, for a temporary period of one quarter. These special needs cannot be listed individually in the notification for every pension case, especially since the needs may differ in each case. Given the large number of notifications issued regarding the death benefit for a quarter of a year, a specific individual purpose cannot be stated in the notification. Every recipient of the death benefit for a quarter of a year will use the funds received for other purposes, but always for the purpose of satisfying the increased expenses of the surviving spouse in the first quarter after the death of the spouse.
2. The opposing view of the Higher Social Court of Hesse in its decision of December 21, 2012 (L 4 SO 340/12 B ER) is not convincing. A specific individual purpose is not required. An abstract, general purpose suffices, especially since the purpose is incidentally stated in the notification by the designation "death quarter benefit." The benefit during the death quarter is not intended by the pension insurance provider to serve as a means of subsistence, but rather to compensate for increased expenses. This is also why the plaintiff's pension notification includes the statement that the death quarter bonus is a benefit earmarked for a specific purpose.
Legal tip:
See Bavarian State Social Court, decision of 12 April 2017 – L 11 AS 245/17 NZB
3.3 – Hildesheim Social Court, Judgment of 10 April 2017 – S 35 AS 1227/14
Legal basis: Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) – Keywords: SGB II benefits during the waiting period for a master's thesis, grant instead of loan
Principle (Editor):
The exclusion from benefits under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) does not apply to the plaintiff because the prerequisites are not met in his case. According to the Federal Social Court's jurisprudence, the exclusion from benefits under Section 7 Paragraph 5 SGB II only applies if a student remains organizationally affiliated with the university and is actually pursuing his studies. However, the plaintiff has been deregistered from the university, is therefore no longer affiliated with the university, and is no longer actively pursuing his studies. He is merely awaiting a date for the defense of his master's thesis (cf. Federal Social Court, Judgment of March 22, 2012 – B 4 AS 102/11 R).
Source: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen: www.anwaltskanzlei-adam.de
3.4 – Social Court of Konstanz, Judgment of 31 May 2017 – S 11 AS 808/17
Principle (Juris):
The costs for emergency supplies in the event of a disaster do not constitute an unavoidable need under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) or Section 24 Paragraph 1 of the German Social Code, Book II (SGB II), at least for an employed person entitled to benefits who has an allowance of approximately €200 per month.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Hamburg State Social Court, Judgment of 06.04.2017 – L 4 SO 58/15
Regarding the reimbursement of costs for self-procured training.
Guiding principle (Editor)
1. As a general legal principle in social law, it is recognized that in the case of self-procurement of urgently needed social benefits (i.e., in urgent and emergency situations) as well as in the case of an unlawful denial of benefits, the costs for the self-procured benefit must be reimbursed (cf. Federal Social Court, judgment of 23 May 2013 – B 4 AS 79/12 R, para. 21; judgment of 6 August 2014 – B 4 AS 37/13 R, para. 14; judgment of 11 December 2007 – B 8/9b SO 12/06 R).
2. A prerequisite for a claim for reimbursement of costs for a self-procured service is the existence of a claim to the (originally) requested service, the primary claim. If the prerequisites for the approval of the requested service are not met, no claim for reimbursement of costs can arise (see Federal Social Court, judgment of December 11, 2007 – B 8/9b SO 12/06 R). The primary claim was not present here.
Source: socialcourtsability.de
4.2 – North Rhine-Westphalia State Social Court, Judgment of 11 May 2017 – L 9 SO 63/16
Guiding principle (Editor):
Knowledge must always relate to the specific individual case in the sense of a "specific need" and is not conveyed solely by the fact that the emergence of a need for social assistance is "common" in certain situations (Saxony State Social Court, Judgment of March 6, 2013 – L 8 SO 4/10). Even the mere suspicion or remote possibility of an emergency is insufficient for the commencement of social assistance.
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Social Court Munich, decision of 31 January 2017 – S 51 AY 122/16 ER
Entitlement to further subsistence-securing measures for a person with tolerated stay
Legal basis:
Asylum Seekers' Benefits Act (AsylbLG) § 1a para. 1, para. 3
Guiding Principles:
1. In cases of very long residence in the Federal Republic of Germany (here approximately 15 years), the essential benefits required under Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) may, in individual cases, include a cash allowance to cover personal daily living needs, ensuring a minimum level of participation in social, cultural, and political life as well as the opportunity to maintain interpersonal relationships. (Editorial principle)
2. A reduction in benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) requires that the benefit recipient has been ordered to perform specific and reasonable acts of cooperation. A request to obtain a passport, issued almost a year prior to the decision, is insufficient. (Editorial note)
Source: www.gesetze-bayern.de
Legal tip:
See Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 2nd ed. 2014, § 1a AsylbLG 2nd revision, para. 64.3
The Social Court of Munich (judgment of January 31, 2017 – S 51 AY 122/16 ER – InfAuslR 2017, 153, 155) requires, in view of the far-reaching legal consequences of sanctions, that the benefit recipient must have been ordered to perform a specific, reasonable, and achievable act of cooperation, which he fails to perform for reasons attributable to him; a reference by the authority to general, previously issued requests is insufficient.
Update of May 29, 2017
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Commentary on: Federal Social Court, 14th Senate, Judgment of June 23, 2016 – B 14 AS 30/15 R – Author: Prof. Dr. Yasemin Körtek, Attorney at Law and Specialist Attorney for Social Law
Invalidity of an integration agreement due to the lack of a provision for the reimbursement of application costs
Guiding principle:
Individually determined efforts by the beneficiary in an integration agreement are only appropriate within the meaning of the so-called prohibition of linkage in the law of public-law contracts if their support by services of the job center is specifically and bindingly defined in the integration agreement.
Source: www.juris.de
6.2 – Re: LSG Lower Saxony-Bremen, Decision of 19 May 2017 – L 7 AS 5/16 B
Lower Saxony-Bremen State Social Court: The exclusion of scans from the document fee is not unconstitutional
Comment by attorney Dr. Hans-Jochem Mayer, specialist in administrative law and specialist in labor law, Bühl
Practical tip:
The exclusion of scans from the document fee (VV 7000 RVG) is unsatisfactory and not objectively justified. The personnel costs for scanning and copying are virtually identical. Furthermore, scanning on a larger scale requires more sophisticated office equipment than simply making photocopies. It is therefore hoped that the legislature will at least make a correction in future legislation.
Source: rsw.beck.de
6.3 – “On the Release of Retroactive Pension Payments in Cases of Account Garnishment” by Attorney Helge Hildebrandt, Kiel
Regarding the Release of Retroactive Pension Payments in Cases of Account Garnishment
: If a retroactive pension payment is credited to a protected bank account pursuant to Section 850k of the German Code of Civil Procedure (ZPO) and exceeds the exempt amount (here €3,949.49 for approximately 19 months), the competent local court can release the retroactive pension payment by order pursuant to Section 850k Paragraph 4 of the ZPO, provided the monthly pension (here approximately €287.00) is within the exempt amount. This is because retroactive payments must be taken into account for the accounting period for which they are made (decision of the Kiel Local Court of May 19, 2017, referring to Stöber, Forderungspfändung [Attachment of Claims], 16th ed., para. 1042).
Source: Sozialberatung-kiel.de
6.4 – Higher Administrative Court for the State of North Rhine-Westphalia of 08.06.2017 – Case No. 11 A 52/17.A
Conditions for asylum seekers in Bulgaria not contrary to human rights
The Higher Administrative Court of Münster has ruled that the transfer of asylum seekers to Bulgaria is not unlawful.
According to the Higher Administrative Court, the Bulgarian asylum procedure and the reception conditions there do not exhibit any systemic weaknesses that would render the transfer of asylum seekers to Bulgaria unlawful. This applies at least to a Dublin returnee (like the plaintiff in the present case) who had not yet submitted an asylum application in Bulgaria before entering Germany and who, as a single young man, does not belong to a particularly vulnerable group.
The Higher Administrative Court of Münster did not grant leave to appeal. An appeal against this decision is admissible, which will be decided by the Federal Administrative Court.
Lower court:
Administrative Court Aachen, judgment of 23 November 2016 – 8 K 1929/15.A
Source: Press release from the Higher Administrative Court of Münster dated June 8, 2017: www.juris.de
6.5 – Hartz IV: Job center does not have to pay for unused apartment – Article by lawyer Philipp Adam, Motzenbäcker & Adam.
The Lower Saxony-Bremen State Social Court has ruled in a new decision, file number: L11 AS 1138/16 B ER, that a job center only has to pay the accommodation costs of a Hartz IV recipient if that recipient actually uses the accommodation.
In the present case, the plaintiff from the Göttingen district participated in a training program at a hair salon in the Kyffhäuser district of Thuringia. There he began a relationship with his boss and subsequently regularly stayed overnight at her apartment.
The defendant job center subsequently refused to pay the plaintiff's housing costs. After an unsuccessful appeal, the case was ultimately brought before the Lower Saxony-Bremen State Social Court for preliminary injunction.
According to the 11th Senate, the defendant is not obligated to pay the accommodation costs in this case. The court stated that the plaintiff's apartment was freezing cold. Furthermore, there were no worn clothes or fresh food items in the apartment. The plaintiff's electrical appliances were also unplugged. Heating costs amounted to only 0.73 cents per month. All of these points indicate that the plaintiff is not using the apartment. It is irrelevant that he submitted a sworn affidavit stating that he does use the apartment.
However, the decision does not clarify when an apartment is considered to be in use and how often a recipient of unemployment benefit II is allowed to stay overnight with another person.
Source: www.anwalt.de
Note:
For the full text of the decision: www.rechtsprechung.niedersachsen.de
Legal tip:
1. Stuttgart Social Court, S 18 AS 4309/14 ER, decision of August 29, 2014 – The assumption of a joint household for unmarried partners necessarily requires the existence of a shared household. Merely maintaining a romantic relationship while keeping separate households is not sufficient to establish a joint household, even if the partners alternately stay overnight in each other's homes.
2. Social Court Duisburg, Judgment of 29.09.2009, Case No. S 5 AS 99/09 – No reduction of basic income support benefits because a recipient of SGB II benefits stays with her partner three times a week during the day
The actual use of the apartment does not lead to a different conclusion. According to the unanimous opinion in case law and legal literature, Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) presupposes, as an unwritten element of the offense, that there is a current housing need and that the apartment not only incurs actual costs but is also actually used by the person in need of assistance. A short-term absence from the premises, e.g., due to vacation, illness, or overnight stays with third parties, is harmless (LSG BRB, decision of May 24, 2006 – L 5 B 147/06 AS ER; LSG BRB, decision of June 16, 2006 – L 10 B 488/06 AS ER; LSG Hessen, decision of October 8, 2007 – L 7 AS 249/07 ER; LSG FST, decision of April 15, 2008 – L 9 AS 1438/07 ER; SG Detmold, decision of October 2, 2006 – S 13 AS 48/06 ER; SG Karlsruhe, decision of January 12, 2006 – S 5 AS 2/06 ER; SG Detmold, decision of October 2, 2006 – S 13 AS 48/06 ER; see also LSG NRW, decision of 1 March 2006 – L 20 B 52/05 SO ER, as well as BVerwG, judgment of 22 December 1998 – 5 C 21/97; Berlit in: LPK-SGB II, 2nd ed. 2007; Frank-Schinke in: Linhart/Adolph, commentary on the SGB II, as of July 2009, § 22 para. 10).
6.6 – Hessian Administrative Court, Judgment of 06.06.2017, Case Nos. 3 A 747/17.A, 3 A 255/17.A, 3 A 3040/16.A
Refugee recognition for Syrian civil war refugees
The Higher Administrative Court of Kassel has ordered the Federal Republic of Germany to grant refugee status to three Syrian nationals.
The Higher Administrative Court of Kassel has rejected the appeals of the Federal Office for Migration and Refugees.
According to the Administrative Court, contrary to the opinion of the Federal Office, the plaintiffs' fear of political persecution upon return to Syria is justified. According to current information from, among others, the Federal Foreign Office, the UNHCR, and the Swiss Refugee Council regarding the situation in the Syrian Arab Republic, the plaintiffs, due to their origin from rebel-held or formerly rebel-held areas of the country, and in connection with their opposition views, which the Syrian authorities presume due to their evasion of military service, face a considerable likelihood of imprisonment and torture, and thus political persecution, if they return via Damascus airport or through any other official entry into their homeland.
The appeal against the judgments was not admitted. An appeal against the refusal to admit the appeal is possible, which would then have to be decided by the Federal Administrative Court.
Source: Press release of the Higher Administrative Court of Kassel No. 8/2017 dated June 6, 2017: www.juris.de
6.7 – Unemployment benefit II, social assistance, basic income support for job seekers according to the Second Book of the Social Code (SGB II)
here: www.arbeitskammer.de
Direct download: www.arbeitskammer.de
Publisher: Saarland Chamber of Labour, Public Relations Department, Fritz-Dobisch-Straße 6-8, 66111 Saarbrücken.
Author: Friedrich Marburger. Edited by: Friedrich Marburger.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
