1. Decisions of the Federal Social Court of 01.12.2016 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 01.12.2016 – – B 14 AS 34/15 R
Costs are only deductible for the period of approval.
Note to the Court
1. According to the regulatory concept of Section 3 of the Second Book of the Social Code (SGB II), the reference period for determining business income and expenses is the respective benefit period. This also applies to vehicle costs in Section 3 Paragraph 7 of the SGB II.
2. This regulation is covered by the enabling provision in Section 13 of the German Social Code, Book II (SGB II), does not violate higher-ranking law, such as the calendar year as the profit determination period according to Section 4a Paragraph 1 Sentence 1 Number 3 of the German Income Tax Act (EStG), because the SGB II provides for other benefit periods, and is compatible with constitutional law. The differentiation in Section 3 Paragraph 7 of the German Regulation on Unemployment Benefit II (Alg II-V) is based on objective grounds and remains within the bounds of permissible categorization according to Article 3 Paragraph 1 of the German Basic Law (GG); violations of Articles 12 and 14 of the Basic Law are not apparent.
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of 08.03.2017 on social assistance (SGB XII)
2.1 – Federal Social Court (BSG), Judgment of March 8, 2017 – B 8 SO 2/16 R
Integration assistance: Requirements for a subsidy for a suitable vehicle.
The Federal Social Court refers the case back: Dispute over a car from the social welfare office for a person with walking disabilities will be retried.
In a case before the Federal Social Court (BSG) – B 8 SO 2/16 R –
a man from North Rhine-Westphalia with both severe and mobility impairments can continue to hope for financing of a car by his social welfare provider. The Federal Social Court in Kassel overturned a lower court ruling on March 8, 2017, and referred the case back to the North Rhine-Westphalia State Social Court. Further facts need to be established, such as how the man's disability affects his daily life, explained a spokesperson for the Federal Social Court (case number: B 8 SO 2/16 R).
Federal Social Court: Social welfare agencies must provide cars in certain cases.
The city of Bonn had refused to purchase the requested mid-range car with automatic transmission because the man from Bonn had not plausibly demonstrated that he could not do his shopping and maintain social relationships on foot. The man had argued that his desire for social participation had been misunderstood. The spokesperson for the Federal Social Court explained that it is not fundamentally impossible for social welfare agencies to be required to provide cars in certain cases.
Source: rsw.beck.de
Note to the Court:
See paragraph 23.
Routes that the plaintiff intends to travel by car are therefore only irrelevant for assessing the necessity of using a car if they are wishes whose fulfillment is considered unreasonable in the comparison group of non-disabled, non-social-needing adults of the same age group (e.g., due to the regularly associated costs) and which therefore cannot serve participation; in this respect, the views of the defendant and the interveners or the court do not determine the scope and frequency of the disabled person's participation (cf. already Federal Social Court, judgment of 12 December 2013 – B 8 SO 18/12 R – paragraph 16).
Finally, the typical example of being dependent on a motor vehicle, particularly for participation in working life (cf. Section 8 Paragraph 1 Sentence 2 Half-Sentence 1 of the Integration Assistance Ordinance), does not imply any limitation of the entitlement to the effect that the disabled person must be dependent on the motor vehicle "as a rule on a daily basis" in light of their wishes (but see Higher Social Court of North Rhine-Westphalia, Judgment of 15 September 2011 – L 9 SO 40/09 – Paragraphs 45 et seq.; Higher Social Court of Schleswig-Holstein, Judgment of 27 November 2013 – L 9 SO 16/11 – ZFSH/SGB 2014, 298 et seq.; Schmeller in Mergler/Zink, Handbook of Basic Income Support and Social Assistance, Section 54 SGB XII Paragraphs 47 et seq., as of March 2016; Exner/Dillmann, br 2013, 1).
Participation in working life does not necessarily require a daily commute; assistance with transportation could also be granted if the disabled person can work predominantly from home, only needs to be present at the workplace on a few days, and a vehicle would be necessary for this purpose. Above all, however, any rigid time-based requirement contradicts the presented system, according to which a person-centered approach, taking individual circumstances into account, is crucial for the greatest possible integration into society.
Source: juris.bundessocialgericht.de
Note:
In consistent continuation of its case law, the Federal Social Court (BSG) (judgment of 08.03.2017 – B 8 SO 2/16 R, para. 23) recognizes that the standard example of being dependent on a motor vehicle, particularly for participation in working life, does not imply any limitation of the entitlement such that the disabled person must be dependent on the motor vehicle “as a rule on a daily basis” in light of their wishes (jurisPK-SGB XII 2nd ed. / Wehrhahn, para. 9.4).
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Lower Saxony-Bremen State Social Court, Judgment of 31 May 2017 – L 13 AS 105/16
Basic income support for job seekers; consideration of assets during the separation year; house and property still used by separated spouses
Principle (Juris):
The obligation to liquidate a house and property still used by the separated spouse, which constituted protected assets within the meaning of Section 12 Paragraph 3 Sentence 1 Number 4 of the German Social Code, Book II (SGB II) until the benefit recipient moved out, before the end of the separation year, can constitute a special hardship within the meaning of Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 2 of the German Social Code, Book II (SGB II).
Source: www.rechtsprachung.niedersachsen.de
Note:
Recipients of basic income support during the separation year do not have to sell their own home.
The LSG Celle-Bremen has ruled for the first time in a higher court ruling that recipients of basic income support may not be referred to the sale of their house property during the separation year.
Source: Press release from the Celle-Bremen Higher Social Court dated June 26, 2017: www.juris.de
3.2 – Lower Saxony-Bremen State Social Court, Decision of May 19, 2017 – L 11 AS 245/17 B ER
Preliminary legal protection – Requirements for the grounds for the order or the urgency – Unemployment benefit II – Accommodation and heating – Separation of spouses – Alternating use of the previous family home for childcare – Nesting model – Renting an additional room in a shared apartment – Consideration of half of the accommodation costs for the family home and room
Principle (Editor)
1. The Senate has already ruled that costs for maintaining a previous residence – for example, to keep a place of retreat open in the event of a new partnership – are not to be covered by the basic income support provider (decision of January 9, 2017 – L 11 AS 1138/16 B –). This also applies analogously to the present case (so-called “nest model” after parental separation).
2. It is not the purpose of basic income support to fully finance a custody arrangement chosen by parents after separation, which results in additional accommodation costs due to the continued residence of the family home. Under basic income support law, the entitlement to housing and accommodation benefits exists only for a single residence, namely the premises actually used.
Principle (Juris)
1. On the entitlement to benefits for costs of accommodation and heating (KdUH) after separation of spouses by way of the so-called “nest model”
2. In expedited proceedings concerning SGB II benefits for ongoing housing and utilities, the requirements for the grounds for the order must not be excessive. The urgency required for issuing a preliminary injunction is generally present if an SGB II benefits provider wrongfully denies benefits for ongoing housing and utilities, resulting in a shortfall in the affected party's needs. The fact that the conditions for an extraordinary termination of the tenancy due to rent arrears already exist, or that the landlord has already terminated the tenancy or filed for eviction, is not a prerequisite for establishing the grounds for the order.
Source: www.rechtsprachung.niedersachsen.de
3.3 – Thuringian State Social Court, Decision of 01.06.2017 – L 4 AS 851/16 B – legally binding
Legal aid was granted because the job center did not comply with the deadline and submitted the application on the same day (cf. regarding "premature application": LSG Saxony-Anhalt, decision of March 1, 2016 – L 5 AS 25/16 B ER, para. 47; LSG Saxony-Anhalt, decision of November 18, 2016 – L 4 AS 550/16 B ER)
Principle (Juris)
1. The general public-law claim for the removal of the pension application submitted as a substitute by the SGB II benefit provider pursuant to Section 5 Paragraph 3 Sentence 1 SGB II may be considered as a legal basis for a claim for the withdrawal of the pension application submitted by the SGB II benefit provider pursuant to Section 5 Paragraph 3 Sentence 1 SGB II.
2. The request to submit an application pursuant to Section 12a Sentence 1 of the German Social Code, Book II (SGB II) must include a reasonable deadline (see Federal Social Court (BSG), Judgment of August 19, 2015 – B 14 AS 1/15 R, para. 34). The person entitled to benefits, who as the claimant is primarily entitled and obligated to submit the application, must first be given the opportunity to submit the application themselves within the set deadline.
Source: socialcourtsability.de
3.4 – LSG Munich, decision of 16.05.2017 – L 11 AS 335/17 B ER
No claim or grounds for an injunction due to the lack of imminent loss of housing within the framework of a preliminary injunction
Guiding Principles:
1. Insofar as subsistence benefits are at stake and therefore a significant violation of fundamental rights extending beyond marginal areas is imminent, which cannot be remedied by a decision in favor of the plaintiff on the merits, a refusal to grant preliminary legal protection is only permissible if the factual and legal situation has been conclusively clarified (following the Federal Constitutional Court decision BeckRS 2016, 53085). (Paragraph 13) (Editorial principle)
2. A decision based on a careful and sufficiently substantiated balancing of interests is only permissible if a review of legality cannot be carried out, even considering the short time typically available in preliminary injunction proceedings, which the court must clearly demonstrate (following the Federal Constitutional Court, BeckRS 2016, 53085). If there is no imminent emergency or threat of loss of housing, there is no claim to and grounds for an injunction. If future compensation for use is to be claimed, a new application for preliminary relief would have to be filed. (Paragraphs 13-14) (Editorial note)
Source: www.gesetze-bayern.de
3.5 – LSG Baden-Württemberg, decision of 26 April 2017 – L 1 AS 854/17 ER-B
Regarding the affirmation of a claim for benefits by a Croatian applicant who, as a result of only a very short period of employment in the federal territory and his unemployment, has lost his right of residence under Section 2 Paragraphs 1 and 2 No. 1 of the Freedom of Movement Act/EU, pursuant to Section 41a Paragraph 7 Sentence 1 No. 1 of the German Social Code, Book II (SGB II), for the granting of provisional assistance.
Principle (Juris):
Section 41a paragraph 7 of the German Social Code, Book II (SGB II) may give rise to an entitlement to provisional benefits if there are special circumstances which, in the individual case, are suitable to justify a reduction of discretion to zero (distinction from the decision of the Lower Saxony-Bremen State Social Court of 16 February 2017 – L 8 SO 344/16 B ER).
Source: socialcourtsability.de
3.6 – LSG Baden-Württemberg, decision of 12 June 2017 – L 1 AS 1310/17 ER-B
The replacement of worn-out or defective furnishings after prolonged use is to be financed from the standard allowance.
Principle (Juris):
A claim against the basic income support provider for the granting of subsidies for the procurement of new household furnishings does not exist after an eviction if the old furnishings were initially stored by the previous landlord and only destroyed because the benefit recipient refused to collect the furnishings, which the former landlord was prepared to hand over, citing the poor condition of the furnishings.
Source: lrbw.juris.de
3.7 – LSG Baden-Württemberg, decision of 31.5.2017, L 1 AS 1815/17 ER-B
Principle (Juris):
In the case of a pregnant Bulgarian citizen infected with HIV who is expecting a child by a foreign national who has been legally residing in Germany for more than 8 years and has acknowledged the child to the youth welfare office, a right of residence due to the effects of residence law can be assumed at least if a return to Bulgaria to carry out the visa procedure would impair the health of the unborn child.
Source: lrbw.juris.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Dresden, Judgment of 19 January 2017 – S 45 AS 380/16 – Appeal pending before the Saxon State Social Court L 7 AS 547/17
Principle (Juris):
The concept underlying the administrative regulation of the Görlitz district, which came into force on February 1, 2015, does not meet the requirements for a coherent concept. The chosen quantile for the underlying comparative figures, derived solely from existing data of basic income support recipients and from aggregate data combining advertised and existing rents, is not plausibly justified. The availability test established as a third comparative figure contains mathematically incomprehensible calculation steps. Therefore, none of these values can be used as a limit for adequacy; instead, the values from the housing benefit table must be applied.
The Chamber is convinced that a corresponding limit of appropriateness cannot be derived from the administrative regulation of the district of A… concerning the costs of accommodation and heating pursuant to Section 22 of the Social Code – Book Two (SGB II) and Section 35 of the Social Code – Book Twelve (SGB XII), which came into force on 1 February 2015, as this does not meet the requirements of a conclusive concept within the meaning of the case law of the Federal Social Court.
Source: socialcourtsability.de
Note:
Capping of accommodation costs for Hartz IV recipients is unlawful – Social Court Dresden, judgment of 19 January 2017 – S 45 AS 380/16 and Social Court Dresden, judgment of 8 May 2017 – S 20 AS 3514/14
The Social Court of Dresden has ruled that the capping of accommodation costs for Hartz IV recipients in the districts of Görlitz and Saxon Switzerland-Eastern Ore Mountains is unlawful.
The concepts of the districts of Görlitz and Sächsische Schweiz-Osterzgebirge are not conclusive in accordance with the jurisprudence of the Federal Social Court (BSG). The capping of accommodation costs for "Hartz IV" recipients in these districts is therefore invalid, according to the Social Court of Dresden.
Source: Press release of the Social Court of Dresden No. 9/2017 dated June 26, 2017: www.juris.de
4.2 – Social Court Dresden, Judgment of 08.05.2017 – S 20 AS 3514/14
Capping accommodation costs for Hartz IV recipients is unlawful
Editorial Note:
The capping of accommodation costs for Hartz IV recipients in the district of Sächsische Schweiz-Osterzgebirge is unlawful. The district of Sächsische Schweiz-Osterzgebirge lacks a coherent plan for the town of Heidenau in 2014/2015.
Source: socialcourtsability.de
Note:
www.juris.de
4.3 – Social Court Dortmund, Judgment of 17 March 2017 – S 19 AS 4647/16
Principle (Editor)
1. Romanian nationals are entitled to ALG II due to their employee status – working hours of ten hours per week – gross salary of EUR 335.92 – = net salary significantly above the amount of EUR 175.00.
2. This is all the more true since, at least in some legal rulings, income of any amount is considered sufficient to establish employee status as soon as it leads to an offset under the law governing basic income support for job seekers, i.e., exceeds EUR 100.00 (see LSG NRW, decision of 07.10.2016, L 12 AS 965/16 B ER; already indicated in a similar way by LSG NRW, decision of 07.04.2016, L 7 AS 288/16 B ER; see also LSG Sachsen-Anhalt, judgment of 24.06.2016, where a gross wage of EUR 165.75 was considered sufficient).
Source: socialcourtsability.de
4.4 – Social Court Aachen, Judgment of 30.08.2016 – S 14 AS 751/15
The job center's decision to revoke the benefits was unlawful because, contrary to the assumption underlying the job center's decision, the plaintiff was (and is) capable of working within the meaning of Section 8 Paragraph 1 of the German Social Code, Book II (SGB II).
Guiding principle (Editor):
A 100% disabled applicant who is unable to travel may be entitled to SGB II benefits.
Court Note:
Ultimately, the plaintiff could not challenge the Job Center's determination of incapacity for work, which formed the basis for the revocation decision. From the perspective of a person in need of assistance, the allocation of responsibilities under Section 44a of the German Social Code, Book II (SGB II), between the participating agencies is merely an internal administrative preliminary matter, for which the legislator clearly did not intend any external legal effect (cf. Section 31, Sentence 1 of the German Social Code, Book X (SGB X)). Consequently, the plaintiff is free to claim benefits from the basic income support provider despite a different assessment by the pension insurance provider. He does not have to appeal against the pension insurance provider or the Federal Employment Agency and their assessment, but only against the negative decision of the job center (Bavarian State Social Court, decision of February 16, 2012 – L 11 AS 1019/11 B ER, para. 23, juris; Knapp in: Schlegel/Voelzke, jurisPK-SGB II, 4th ed. 2015, § 44a, para. 67; cf. Blüggel, in: Eicher, SGB II, 3rd ed. 2013, § 44a, para. 104; cf. ibid. in: jurisPK-SGB XII, § 45 para. 59; Kirchhoff in: Hauck/Noftz, SGB XII, § 45 para. 24; Steimer in: Mergler/Zink, SGB XII, § 45 Paragraph 13a). Due to the subsidiarity (cf. Section 42 Paragraph 2 VwGO, Keller, in: Meyer-Ladewig/Keller/Leitherer, SGG, 11th edition 2014, Section 55, Paragraph 19) of the general declaratory action (Section 55 SGG), the person in need of assistance is therefore limited to the incidental review of the official determination of his earning capacity within the framework of an action for annulment, possibly combined with an action for performance (cf. LSG Bay, loc. cit.; Knapp, loc. cit.) or an action for a declaratory judgment.
Source: socialcourtsability.de
5. Decisions on employment promotion law (SGB III)
5.1 – Bavarian State Social Court, Judgment of 20 April 2017 – L 9 AL 49/14
Continued granting of a start-up subsidy after the end of the first funding phase – abuse of discretion exists – a comprehensive examination of the specific circumstances of the plaintiff's individual case was not carried out
Discretionary action in granting a start-up subsidy to promote self-employment
Principle (Editor):
In exercising its discretion regarding the continued granting of the start-up subsidy, the defendant applied a schematic and generalized approach, based on the discretionary guidelines of the Employment Agency, and relied on what it considered to be sufficient profit income from the plaintiff's self-employment. However, a legally sound exercise of discretion would have required a comprehensive examination of the specific circumstances of the plaintiff's individual case (cf. Higher Social Court for the State of North Rhine-Westphalia, judgment of October 17, 2013, case no. L 9 AL 150/12).
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Social Assistance (SGB XII)
6.1 – LSG Hessen, 10.05.2017 – L 4 SO 119/14
Principle (Juris)
1. On the interpretation of a notice of approval granting "ongoing benefits" of social assistance "initially only for one month".
2. On the scope of the binding effect of such an administrative act.
Source: socialcourtsability.de
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Federal Administrative Court decision of 27 June 2017 – 1 C 26.16
The European Court of Justice is to clarify questions concerning the secondary migration of recognized refugees
The German Federal Administrative Court (BVerwG) has referred questions to the European Court of Justice (ECJ) to clarify issues concerning the secondary migration of foreigners who have already been recognized as refugees in an EU member state.
The Federal Administrative Court (BVerwG) stated that the case specifically concerns the possibility, provided for in the Asylum Procedures Directive, of rejecting an asylum application as inadmissible if the applicant has already been granted refugee protection in another EU member state. The European Court of Justice (ECJ) was already asked in March to clarify questions in cases where subsidiary protection has been granted abroad (BVerwG, Decision of 23 March 2017 – 1 C 17.16 et al.).
The Federal Administrative Court has suspended the appeal proceedings pending a decision by the European Court of Justice.
Source: Press release of the Federal Administrative Court (BVerwG) No. 47/2017 of 27 June 2017: www.juris.de
7.2 – OVG Lüneburg v. June 27, 2017 – 2 LB 117/17
No additional refugee status granted to Syrians under subsidiary protection.
According to the Higher Administrative Court – and this view is largely shared in higher court rulings – the illegal departure from Syria, the asylum application, and the extended stay in a Western country do not, in themselves, constitute sufficient grounds to conclude that the individual would suffer political persecution upon a return to Syria – a purely hypothetical scenario due to his subsidiary protection status. The fact that the plaintiff, by leaving the country, preempted being drafted into military service does not, without further evidence, make him suspect in the eyes of the Syrian authorities of intending to engage in political opposition beyond fleeing the civil war.
The appeal to the Federal Administrative Court was not admitted.
Source: Press release from the Higher Administrative Court of Lüneburg dated June 27, 2017: www.juris.de
7.3 – BSG, judgment of June 29, 2017 – B 10 EG 5/16 R
No higher parental allowance due to the one-off payment of holiday or Christmas bonus
The Federal Social Court (BSG) has ruled that annual holiday or Christmas bonuses do not increase parental allowance; these payments are disregarded as other income when calculating parental allowance.
Source: Press release from the Federal Social Court (BSG) dated June 29, 2017: www.juris.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
