1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – North Rhine-Westphalia State Social Court, Judgment of 29 June 2017 – L 7 AS 607/17 – Appeal allowed
Applying the right to offset payments against rental deposit loans is unlawful. The law does not provide for the partial coverage of housing costs through benefits intended to cover standard living expenses.
LSG NRW: Even under the new legal situation, offsetting rent deposit loans in the context of social assistance (SG B II) is inadmissible:
Principle (Editor):
Section 42a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) is not applicable to rental deposit loans pursuant to Section 22 Paragraph 6 Sentence 1, 3 of the SGB II (also doubtful in the Federal Social Court's decision of June 29, 2015 – B 4 AS 11/15 R; left open in the Federal Social Court's judgment of June 25, 2015 – B 14 AS 28/14 R).
Source: socialcourtsability.de
Note:
Proposal for a nationwide campaign against unconstitutional offsetting below the subsistence level
Offsetting rental deposits and cooperative shares provided as loans against SGB II benefits is not permitted!
According to Tacheles eV, the offsetting of rental deposits and cooperative shares against standard benefits under the German Social Code, Book II (SGB II), as stipulated in Section 42a Paragraph 2, is unconstitutional. The unemployed workers' association is proposing a nationwide campaign to support benefit recipients in taking legal action against the reduction of their subsistence level caused by these offsetting measures. Since the regulation is also controversial in social courts and legal literature, we see realistic chances of overturning the offsetting of housing loans in the medium term through numerous lawsuits and a political campaign.
More information: tacheles-sozialhilfe.de
1.2 – LSG NRW, decision of 17.07.2017 – L 2 AS 122/17 B
Temporary household unit – entitlement to full additional needs allowance for single parents – division of children's housing needs unlawful
A pro rata reduction in accommodation costs does not take place in the case of a temporary community of need.
Guiding principle (Editor):
1. In the case of a child whose parents live separately, the child's center of life is the home of the parent with whom they predominantly reside. Ensuring the child's housing needs with this parent fully satisfys their basic need for shelter. A division of housing needs based on the extent of time spent with each parent is not permissible (cf. Federal Social Court, Judgment of February 17, 2016, B 4 AS 2/15 R).
2. The mother of the children is entitled to the full additional needs allowance if the father, as in the present case, forms a temporary household with the children for less than half the time (BSG, judgment of 12.11.2015, B 14 AS 23/14 R and BSG, judgment of 11.2.2015, B 4 AS 26/14 R).
Source: Attorney Lars Schulte-Bräucker
1.3 – North Rhine-Westphalia State Social Court, decision of 12 July 2017 – L 12 AS 596/17 B ER, L 12 AS 597/17 B – legally binding
right of residence based on the exercise of parental custody during the child's school attendance
Note from the Court:
Article 10 of Regulation (EU) No 492/2011 codifies that the children of a national of a Member State who is or has been employed in the territory of another Member State, if they reside in the territory of that Member State, may participate in general education, apprenticeships, and vocational training under the same conditions as nationals of that Member State. This provision establishes an autonomous right of residence for the children of an employee, independent of their parents (Federal Social Court judgment of 3 December 2015, B 4 AS 43/15 R; Higher Social Court of North Rhine-Westphalia decision of 16 March 2017, L 19 AS 190/17 B ER; Higher Social Court of Saxony-Anhalt decision of 29 April 2016, L 4 AS 182/16 B ER).
Source: socialcourtsability.de
1.4 – Berlin-Brandenburg State Social Court, Judgment of 20 June 2017 – L 18 AS 1812/16
Unemployment benefit II – self-employment – business expenses – repayment of income tax debts
Principle (Editor)
1. The claimed repayments of income tax debts from previous years are not eligible. Income tax payable can only be deducted in the months in which it was due and therefore payable (cf. Federal Social Court, judgment of August 22, 2013 – B 14 AS 1/13 R).
2. The plaintiffs' argument fails to recognize that the income tax – like the value added tax debts – unlike a tax arrears assessed for the first time during the benefit period (see Chemnitz Social Court, judgment of May 25, 2016 – S 35 AS 3984/14) – did not become due during the benefit period in dispute, but rather in 2012 and 2010 respectively; the deferral pursuant to Section 222 of the German Fiscal Code (AO) does not alter the fact that the taxes became due upon assessment (see Section 220 AO; see also Section 222 AO “upon maturity”).
3. Apart from the fact that Section 3 of the Unemployment Benefit II Ordinance (Alg II-VO) in conjunction with Section 11b of the Social Code, Book II (SGB II) conclusively regulates which items are to be deducted from income before it is subject to distribution, income must first and foremost be used to secure subsistence. The principle of subsidiarity in state welfare means that it should only intervene when those in need have exhausted the resources available to them (see Federal Social Court (BSG), judgment of April 15, 2008 – B 4 AS 27/07 R).
Source: socialcourtsability.de
1.5 – Berlin-Brandenburg State Social Court, Judgment of 09.03.2017 – L 29 AS 544/14
Income assessment – order – additional needs – trainees
There is no entitlement to a higher additional needs allowance for single parents than the benefit for trainees under the German Social Code, Book II (SGB II), because Section 19 Paragraph 3 Sentence 2 of the SGB II does indeed provide a legal requirement for taking income into account, which must also be taken into account at least accordingly when applying Section 27 Paragraph 2 of the SGB II (contrary to the ruling of the Berlin Social Court of March 25, 2015 – S 205 AS 8970/14).
Guiding Principle (Editor):
1. It cannot be inferred from the wording of Section 27 Paragraph 2 of the German Social Code, Book II (SGB II) that existing income and assets are only to be considered secondarily when calculating additional needs. According to the wording of Section 27 Paragraph 2 SGB II, an additional need under Section 21 Paragraphs 2, 3, 5, and 6 SGB II exists only "insofar as the additional needs are not covered by income or assets to be taken into account." A claim to an additional need is therefore subject to the corresponding condition of need. If income or assets are available, according to the wording of the provision, these must, in principle, be used primarily to satisfy the additional needs, without any subordination to other benefits being stipulated. Based solely on the wording of Section 27 Paragraph 2 SGB II, any income that could be taken into account would thus be directly credited against the additional needs.
2. The systematic structure of the regulations supports the application of the order from Section 19 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) for benefits under Section 27 of the German Social Code, Book II (SGB II) in conjunction with Section 21 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
1.6 – Berlin-Brandenburg State Social Court, Judgment of 15 June 2017 – L 25 AS 1631/16
Basic income support for job seekers – Integration administrative act (EGVA) – Type of action in the event of continuing regulatory effect / in the event of a sanction notice based on the EGVA – Admissibility of the action despite a pending action against the sanction notice – Discretionary decision – Period of validity – Reciprocal specification of duties and obligations
Principle (Editor)
1. On the legality of an administrative act (EGVA) replacing an integration agreement (EGV), affirmed here.
2. The appeal on points of law was admissible pursuant to Section 160 Paragraph 2 No. 1 of the Social Court Act (SGG) due to the fundamental importance of the legal issue. This is because, in the present case, it is unclear which type of action is admissible – an action for annulment or an action for declaratory relief – nor is it clear what the relationship is between legal remedy proceedings against an administrative act (EGVA) on the one hand and a decision based thereon concerning a finding of a violation of the administrative act and a reduction of the entitlement to unemployment benefit II (Alg II) on the other.
Source: socialcourtsability.de
1.7 – State Social Court of Saxony-Anhalt, decision of 07.03.2017 – L 2 AS 127/17 B ER – legally binding
Principle: Information network Asylum and Migration
Temporary order for provisional benefits under SGB II and SGB XII:
1. Until December 28, 2016, there was no exclusion from benefits for a Union citizen (Portugal) with two school-age children, as they had a right of residence under Article 10 of the Migrant Workers Regulation (492/2011/EU) for children of former workers (and their parents) and were therefore not excluded from benefits under the old version of Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II).
2. As of December 29, 2016, due to a change in the law, those entitled to residence under Article 10 of the Migrant Workers Regulation (492/2011/EU) are also subject to the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 2c of the German Social Code, Book II (SGB II). No violation of European law can be established by the new regulation.
3. For the period from December 29, 2016, the affected persons are entitled to subsistence assistance under the German Social Code, Book XII (SGB XII). The exclusion of benefits in Section 23 Paragraph 3 of the SGB XII (as in the SGB II, also for persons with residence permits under Article 10 of the Migrant Workers Regulation (492/2011/EU)) is not compatible with EU law, since the German Federal Government has not declared any reservation to the European Convention on Social and Cultural Rights (EFA) with regard to the SGB XII.
(Editorial guidelines, cf. regarding the legal situation before the amendment of the law LSG Saxony-Anhalt, decision of 24.08.2016 – L 2 AS 449/16 B ER – asyl.net: M24181)
For the full text: sozialgerichtsbarkeit.de
Principle (Juris)
1. The exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) for foreigners whose right of residence is solely for the purpose of job seeking, in the version applicable from December 29, 2016, by the Act on the Regulation of Claims of Foreign Persons in Basic Income Support for Job Seekers under the German Social Code, Book II (SGB II) and Social Assistance under the German Social Code, Book XII (SGB XII) of December 22, 2016 (Federal Law Gazette I, p. 3155), does not violate overriding European Community law.
2. The exclusion of benefits pursuant to Section 23 Paragraph 3 of the German Social Code, Book XII (SGB XII), in the version applicable from December 29, 2016, does not apply to citizens of signatory states of the European Social Security Convention (EFA).
1.8 – State Social Court of Saxony-Anhalt, Judgment of 11 May 2017 – L 5 AS 547/16
Principle (Juris)
1. The limitation of expenses for the costs of accommodation and heating (KdU) after an unnecessary move to the previous amount pursuant to Section 22 Paragraph 1 Sentence 2 SGB II does not apply if a move takes place across the boundaries of the comparison area (as per BSG, judgment of 1 June 2010, B 4 AS 60/09 R).
2. The Harz district (area 2,104 km², 221,399 inhabitants) is not a single, unified "comparative area" as a territorial entity, because its constituent municipalities exhibit significant structural differences that become apparent when considering topography, population density, and infrastructure. Based on place of residence, it comprises 14 comparative areas, mostly in the form of political municipalities with their own housing markets.
Source: sozialgerichtsbarkeit.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Augsburg Social Court, decision of 18 July 2017 – S 8 AS 737/17 ER
Regarding the crediting of an operating and heating cost reimbursement.
Principle (Juris)
1: For the purposes of determining whether benefits are discontinued when applying Section 11 Paragraph 3 of the German Social Code, Book II (SGB II) in the cases specified in Section 22 Paragraph 3 of the SGB II, only the portion of the benefit entitlement that is reduced is relevant, namely the need for accommodation and heating. (Paragraph 22) (Editorial principle)
2. If a reimbursement of operating costs exceeds the monthly cost of accommodation and heating, the reimbursement amount must be spread over six months. (Paragraph 22) (Editorial note)
Source: socialcourtsability.de
2.2 – Social Court Munich, decision of 12 July 2017 – S 40 AS 1532/17 ER
Guiding Principle
1: When reviewing a sanction notice for failing to appear at a scheduled appointment, the notice requesting the employable benefit recipient to report must be reviewed incidentally (following BayLSG BeckRS 2016, 74861). (Paragraph 17) (Editorial principle)
2. The purpose of a summons to a reporting appointment is not rendered unlawful by the fact that an employable benefit recipient was asked to submit the documentation required by an integration administrative act. This also applies if the validity period of the integration administrative act has already expired at the time of the reporting appointment. (Paragraph 19) (Editorial note)
3 For benefit recipients who are not employed, it is reasonable to postpone non-urgent medical appointments if an appointment with the employment advisor is scheduled in good time. (Paragraph 22) (Editorial note)
4. A notification of legal consequences does not need to include information about the provision of Section 309 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III). (Paragraph 25) (Editorial note)
Source: www.gesetze-bayern.de
Legal tip:
a. A. SG Leipzig, decision of 09.09.2016 – S 22 AS 2098/16 ER – The instruction on the legal consequences in a request to report on a specific day at a specific time is incomplete, at least if the instruction on the legal consequences explains, with reference to the legal text, when a violation of the reporting obligation occurs, but without pointing out that the reporting obligation is also fulfilled if the report is made at a different time on the same day and the purpose of the report is achieved.
2.3 – Social Court Magdeburg, decision of 24 July 2017 – S 4 AS 333/17 ER
Principle by Attorney Michael Loewy
1. Calculating an annual average income for a harvest worker employed in agriculture during the harvest months, including overtime hours worked during the harvest, is inadmissible. It is inherent in the nature of the work that no additional work, and therefore no further compensation, is required during the winter months.
2. The costs of obtaining a tractor driver's license for a trainee in the field of crop production cannot be considered "fictitious" income if the employer withholds these costs from the trainee's remuneration. These costs must either be deducted from income as business expenses or, due to the lack of actual income, are not deductible.
Source: www.anwaltskanzlei-loewy.de
3. Decisions of the State Social Courts on Employment Promotion (SGB III)
3.1 – Schleswig-Holstein State Social Court, Judgment of 14 July 2017 – L 3 AL 14/15
Guiding principle (Editor)
: 1. The applicant has no entitlement to a start-up grant and also no entitlement to a new decision on his application.
2. The plaintiff did not end his unemployment within the meaning of Section 93 Paragraph 1 of the German Social Code, Book III (SGB III) by taking up his self-employment (cf. on the problem in general the judgments of the Senate of November 11, 2016, L 3 AL 29/14 and of December 16, 2016, L 3 AL 10/14).
3. The termination of unemployment by taking up self-employed, full-time work, which is required for the granting of the start-up grant pursuant to Section 93 of the German Social Code, Book III (SGB III), is also linked to the definition of unemployment in Section 138 of the German Social Code, Book III (SGB III) (see also Hamburg Higher Social Court, judgment of December 7, 2016, L 2 AL 7/16).
4. As can be seen from Section 138 Paragraph 1 of the German Social Code, Book III (SGB III), the following are required: unemployment, personal efforts and availability. The mere existence of unemployment is not sufficient (see also Jüttner in Mutschler, Schmidt-Caluwe, Coseriu, SGB III, 6th ed., § 93 para. 42; differently, referring to the purpose of the start-up grant, which is to promote reintegration into the labor market through self-employment, Link in Eicher/Schlegel, SGB III, as of June 2015, § 93 para. 84, and – without further explanation – Hassel in Brand, SGB III, 7th ed., § 93 para. 9; see also Federal Social Court [BSG], judgment of May 5, 2010, B 11 AL 11/09 R, juris, para. 26, whereby the statements made therein by the Hamburg Higher Social Court [ibid.] are, in the opinion of the Senate, correctly described as an insufficiently clear obiter dictum).
5. In the present case, the plaintiff lacks the subjective availability of the plaintiff.
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Baden-Württemberg Judgment of 29.06.2017, L 7 SO 5382/14
Principle (Juris):
If the school authority has left the determination of the form of schooling to the parents as the legal representatives, then the right of choice and determination granted to them by the school authority must be accepted by the provider of social assistance for integration with regard to assistance for appropriate schooling in the form of granting student transport costs.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Asylum Law
5.1 – North Rhine-Westphalia State Social Court, decision of 11 July 2017 – L 20 AY 4/17 B – legally binding
Approval of legal aid – claim for an order – substantiation of grounds for an order
No denial of legal aid in preliminary legal proceedings with a shortfall in the minimum subsistence level of 46 EUR per month (almost 13% lower benefits).
Guiding principle (Editor)
1. Granting of legal aid, because to establish grounds for an order, it cannot simply be assumed that the determination of the needs-based rates according to § 3 para. 1 sentence 8 AsylbLG (in the amount applicable since 17 March 2016) still meets the procedural requirements of the Federal Constitutional Court (e.g. judgment of 18 July 2012 – 1 BvL 10/10 and 2/11 para. 62 et seq.) for determining a dignified minimum standard of living.
2. Above all, the difference between the benefits initially provided under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) and the analogous benefits sought by the applicant under Section 2 AsylbLG – unlike, for example, the situation immediately following the Federal Constitutional Court's ruling (loc. cit.) and the transitional provision then in force – is by no means merely marginal. In the standard benefit level 2 (relevant for the applicant), it amounts to €46 per month. Accordingly, the plaintiff received almost 13% less in cash benefits than he would have been entitled to as analogous benefits (and thus as benefits equal to the legally defined subsistence minimum under Book XII of the German Social Code (SGB XII)); even if some needs are met as benefits in kind under (or equivalent to) Section 3 AsylbLG, this significantly restricts the recipient's economic freedom of movement compared to benefits under Section 2 AsylbLG.
3. It was left open whether, in the case of such a shortfall, grounds for an order must always be assumed, or whether there are circumstances in which, given the circumstances of the individual case (e.g., due to a very short period of impact predicted at the time of application), it can still be assumed that the amount in question is "trivial" and grounds for an order are lacking.
4. At least when – as in the applicant's case – the claim for an injunction is clearly evident, waiting for the decision in the main proceedings (which may only be expected after a longer period of time) does not appear reasonable, and therefore, given the interaction between the claim for an injunction and the grounds for the injunction, the legal action cannot be denied sufficient prospects of success, even with regard to the grounds for the injunction.
Source: socialcourtsability.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – OLG Hamm v. July 27, 2017 – Ref.: 4 UF 31/17
Guardianship for a minor refugee:
The Higher Regional Court of Hamm has ruled that guardianship for a minor refugee can also be assumed by his adult sister, who also came to Germany as a refugee, thus eliminating the need for the appointment of a court-appointed guardian.
Source: Press release of the Higher Regional Court of Hamm dated July 27, 2017: www.juris.de
6.2 – ECJ on deadlines under the Dublin III Regulation
The initial application is crucial, as Marcel Keienborg
points out. Refugees face long waiting times for their asylum procedures. Now, the European Court of Justice has clarified that even the initial registration triggers important deadlines. The judges are thus going further than the Advocate General, explains Keienborg.
More information: www.lto.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
