1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – State Social Court of Saxony-Anhalt, decision of 30 March 2017 – L 4 AS 718/16 B ER – legally binding
Legal aid was denied due to the availability of financial resources to bridge an emergency (in this case, heating costs)
Principle (Editor)
1. A ground for an injunction fails already due to the possibility of recourse to existing protected assets (savings accounts currently amounting to approximately EUR 1300.00), which, moreover, are regularly further "funded".
2. According to the Senate's jurisprudence, grounds for an injunction are generally not met in preliminary legal protection proceedings if the applicant has readily available savings. In such cases, it is reasonable to expect the applicant to first use these savings as readily available means to cover their needs, even if they constitute protected assets. Preliminary legal protection proceedings cannot be pursued "in advance" but require an acute financial emergency (LSG Saxony-Anhalt, decision of October 24, 2014 – L 4 AS 423/14 B ER). However, such an acute emergency does not exist here, since, firstly, the applicant possesses a not inconsiderable amount of protected assets of approximately €1,300, and secondly, these assets are regularly increased by evidently existing monthly surplus income.
3. A recipient of benefits under Book II of the German Social Code (SGB II) is generally obligated to examine any loan offered to them and clarify it with the benefit provider before an application for preliminary legal protection can be filed. If they fail to do so, there is generally no ground for an injunction. (See also Higher Social Court of Saxony-Anhalt, decision of May 7, 2015 – L 4 AS 52/15 B ER).
Source: socialcourtsability.de
1.2 – State Social Court of Saxony-Anhalt, decision of 18.04.2017 – L 4 AS 160/17 B – legally binding.
Apartment sizes of 20 to 30 m² for a single person are cramped, but not unusual or per se unreasonable.
Principle (Juris):
A living space of 24 m² for a single-person household does not, in itself, lead to unreasonable living conditions. Without the addition of special circumstances in the individual case, a move is not necessary.
Source: socialcourtsability.de
Note:
Social Court Rostock, Judgment of June 22, 2017 – S 13 AS 845/14 – A move is necessary within the meaning of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), if a socially atypical small apartment is occupied. This is the case for a 60-year-old benefit recipient with a living space of only 29.60 square meters.
1.3 – State Social Court of Saxony-Anhalt, Judgment of 19 October 2016 – L 4 AS 22/15 – legally binding
Regarding the forwarding of child benefit – In the present case, however, the exception clause of Section 1 Paragraph 1 No. 8 of the ALG II-V applies, according to which the child benefit is not to be attributed to the plaintiff, but to her daughter, so that it is not to be taken into account with regard to the granting of benefits by the defendant.
Principle (Juris):
A transfer of child benefit to a child not living in the recipient's household within the meaning of Section 1 Paragraph 1 Number 8 of the Second Book of the Social Code (SGB II) also occurs if the benefit recipient – with the child's consent – regularly uses the child benefit received in their account to pay the rent for the child's own apartment (exceeding the amount of the child benefit). This also applies to other direct payments by the benefit recipient towards the child's liabilities that serve their socio-cultural subsistence (including educational expenses), such as for electricity costs or tuition fees.
Source: socialcourtsability.de
Legal tip:
Regarding the forwarding of child benefit, see: Saxon State Social Court, decision of July 18, 2012 – L 3 AS 148/12 B ER
1.4 – Bavarian State Social Court, Judgment of 24 April 2017 – L 7 AS 755/16
Regarding the legitimate interest in obtaining a declaratory judgment after a change in the legal situation, if the authority fails to comply with the new legal situation
Principle (Juris)
1. On the legitimate interest in a declaratory judgment after a change in the legal situation when the authority disregards the new legal situation
2. On the legitimate interest in declaratory judgments in integration administrative acts
3 In the context of a declaratory judgment action seeking a continuation of the infringement, a legitimate interest in obtaining a declaratory judgment based on the risk of recurrence is precluded if the legal situation has changed in the meantime. (Paragraph 21) (Editorial note)
Source: socialcourtsability.de
1.5 – LSG Munich, decision of 07.08.2017 – L 7 AS 482/17 B ER
Projected income of a self-employed person in expedited proceedings
Guiding principles:
1. Until new figures regarding expected revenues are submitted, the appeal against the first-instance decision may be dismissed if the expected revenues have been correctly calculated using the legally prescribed criteria for the necessary forecast. (Paragraph 15) (Editorial principle)
2. Grounds for an injunction do not exist if the determined need is only €44.82 shortfall. This is because, in the context of expedited decisions, benefits are only granted with a standard allowance reduced by 30%. Furthermore, the adjusted operating result must be considered in full as available funds. (Paragraphs 18-21) (Editorial note)
3. The greater sales opportunities for electric heaters in winter promise higher revenues, the proceeds of which should be used as a priority. (Para. 22) (Editorial note)
Source: socialcourtsability.de
1.6 – Bavarian State Social Court, decision of 24 July 2017 – L 7 AS 427/17 B ER
Entitlement to provisional benefits under Section 41a of the German Social Code, Book II (SGB II) for EU citizens
Principle:
Due to the referrals to the Federal Constitutional Court regarding the constitutionality of the exclusions of EU citizens from benefits under Book II of the German Social Code (SGB II), these individuals are entitled to provisional benefits pursuant to Section 41a Paragraph 7 No. 1 SGB II. The discretion afforded to benefit providers in this respect is reduced to zero. (Paragraph 19) (Editorial principle)
Source: socialcourtsability.de
1.7 – Bavarian State Social Court, Judgment of 24 July 2017 – L 7 AS 462/17 B ER
Regarding the existence of a cohabiting partnership (present here) – joint relocation, joint lease, deferral of rent by Ms. M, occasional sexual relations – Regarding the partners' willingness to commit to each other and the assumption of a community of need
Placement in a youth welfare institution (SOS Children's Village) excludes benefits under the German Social Code, Book II (LSG NRW judgment of 07.09.2015, L 19 AS 2096/13 para. 40 with reference to BSG judgment of 16.04.2013, B 14 AS 81/12 R).
Principle (Juris)
1: If support services are actually provided to partners, a mere denial of the intention to provide support is not sufficient to refute the assumption of a joint household. (Paragraph 60) (Editorial principle)
2. The question of whether a community of support exists cannot be answered solely by considering directly provided support. The provision of indirect support, where repayment by the recipient is not expected, can also establish an intention to support one another. (Paragraph 60) (Editorial note)
Source: socialcourtsability.de
1.8 – Berlin-Brandenburg State Social Court, decision of 22.08.2017 – L 18 AS 1626/17 B ER legally binding
Romanian applicant is entitled to ALG II due to his employee status
Principle (Editor):
A fixed lower limit has not yet been established in the highest court rulings of the Federal Social Court (BSG), nor in the sense of the case law of the 31st Senate of the Higher Social Court of Berlin-Brandenburg (see, among others, the decision of February 17, 2015 – L 31 AS 3100/14 B ER; in contrast, the decision of the adjudicating Senate of February 27, 2017 – L 18 AS 2884/16).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Berlin Social Court, decision of 01.09.2017 – S 179 AS 9879/17 ER
Request for early retirement – suspensive effect – is contrary to the Unreasonableness Ordinance in the version applicable since 1 January 2017
Principle (Juris):
Section 6 of the Unfairness Ordinance does not require causality in the sense that the need for assistance under Book XII of the German Social Code (SGB XII) arises solely from reductions in the standard retirement pension. The decisive factor is whether those entitled to benefits would be entitled to benefits under SGB XII upon ceasing to receive benefits under SGB II. The word "thereby" in Section 6, sentence 1 of the Unfairness Ordinance does not refer to the need for assistance resulting from the reductions in the standard retirement pension, but rather to the need for assistance after ceasing to receive benefits under SGB II.
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – Baden-Württemberg State Social Court, Judgment of 15 August 2017 – L 13 AL 1423/16
Regarding the approval of a start-up grant (here denied)
The factual prerequisites are not met, since the expansion of an already practiced self-employed activity does not constitute a (new) business start-up.
Starting a self-employed business is a prerequisite for receiving a start-up grant
Principle (Juris):
The requirement of proving the viability of the business start-up for the granting of a start-up subsidy pursuant to Section 93 Paragraph 2 Sentence 1 No. 2 (SGB III) is no longer met if the start-up project for a service business is only commenced one year after the originally planned start-up and in a different location than indicated in the original business plan.
Source: socialcourtsability.de
Legal tip:
See the judgment of the Higher Social Court of North Rhine-Westphalia of February 1, 2012 – L 16 AL 104/11
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Berlin-Brandenburg State Social Court, Judgment of 20 July 2017 – L 23 SO 247/15
Expenditure for maintenance and repair – the legalization of accommodation is not covered by Section 35 of the German Social Code, Book XII (SGB XII) and is not the responsibility of the social welfare provider
The plaintiff seeks from the defendant the (proportional) granting of costs for the construction of a heating oil storage room.
Principle (Editor):
1. The costs claimed by the plaintiff for the preparation of the heating oil storage room are not maintenance costs.
2. The legalization of accommodation is not covered by Section 35 of the German Social Code, Book XII (SGB XII) and is not the responsibility of the social welfare agency.
Source: socialcourtsability.de
4.2 – Bavarian State Social Court, decision of 02.08.2017 – L 8 SO 130/17 B ER
Exclusion of EU citizens from benefits under SGB II and SGB XII
Guiding Principles
1. The fact that the question of the constitutionality of the exclusions from benefits for EU citizens is pending before the Federal Constitutional Court does not give rise to an entitlement for this group of persons to the granting of provisional benefits under the German Social Code, Book II (SGB II) pursuant to Section 41a, Paragraph 7, No. 1 of the SGB II. (Paragraph 33) (Editorial principle)
2. There are no fundamental doubts as to the constitutionality of Section 23 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII) as amended on December 22, 2016. (Paragraph 42) (Editorial Note)
3. Bridging benefits pursuant to Section 23 Paragraph 3 Sentences 3-6 of the German Social Code, Book XII (SGB XII) are not a "lesser" form of benefits to secure subsistence, but rather a different form of them. (Paragraph 48) (Editorial note)
Source: socialcourtsability.de
5. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Higher standard allowances in basic income support and social assistance
The “Regulation on the Updating of Standard Needs Levels 2018” (RBSFV 2018) was passed by the Cabinet on 06.9.2017, which means that the standard needs levels in the area of social assistance (SGB XII) and in basic income support for job seekers will be adjusted as of 1.1.2018.
Further information: www.juris.de
5.2 – Federal Constitutional Court, decision of 29 August 2017 – 2 BvR 863/17
The Federal Constitutional Court has prevented the deportation to Bulgaria of a single mother (recognized as a refugee in Bulgaria) with children.
The chamber's decision: the increased need for protection of a family with children, or a single mother with children, requires special consideration in the event of deportation – in this case, the deportation of a single mother from Syria with minor children to Bulgaria – violation of the right to be heard (Article 103 Paragraph 1 of the Basic Law) due to the failure to consider factual submissions regarding a decisive circumstance – determination of the value in dispute
Source: datenbank.nwb.de
Paulo Dias, lawyer & criminal defense attorney:
With the decision published today by the Federal Constitutional Court (decision of August 29, 2017 – 2 BvR 863/17), the Federal Constitutional Court has granted the constitutional complaint we filed.
Our constitutional complaint was directed against the denial of preliminary legal protection in the court proceedings against the rejection of an asylum application and the threat of deportation to Bulgaria. The complainants are Syrian nationals, a single mother together with her four children, who were 16, 11, 9, and 4 years old at the time of the decision on the application pursuant to Section 80 Paragraph 5 of the Administrative Court Procedure Act (VwGO), and who had been granted international protection in Bulgaria as part of the asylum procedure.
The Federal Constitutional Court overturned the decision of the Minden Administrative Court, according to which the persons concerned were to be deported to Bulgaria.
In the constitutional complaint we filed, the Federal Constitutional Court found a violation of Article 103 Paragraph 1 of the Basic Law (GG). The Federal Constitutional Court further questions whether deportations are permissible at all under the current conditions and what requirements apply to the return of those granted recognized protection.
“…Regardless of whether deportations to Bulgaria are permissible under the current conditions and what regulations apply to the return of recognized beneficiaries of protection – these questions will not be decided in the present proceedings – it is clear, in light of the provisions of the EU Reception Directive for particularly vulnerable persons in Articles 21 et seq., the decision of the Federal Constitutional Court of 17 September 2014 (Decision of the Third Chamber of the Second Senate of 17 September 2014 – 2 BvR 732/14 –, juris, para. 10 et seq.) and the Tarakhel decision of the European Court of Human Rights (Decision of 4 November 2014 – 29217/12 –), that the interests of families with children must be given special consideration….”
For further details, please refer to the attached decision of the Federal Constitutional Court.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
