1. Decision of the Federal Constitutional Court on basic income support (SGB II)
1.1 – Federal Constitutional Court, 05.09.2017 – 1 BvQ 46/17
Unsuccessful application for an interim injunction concerning the provisional granting of benefits to secure subsistence
Summary:
Benefits to Secure Livelihood – and the Federal Constitutional Court's Preliminary Injunction
The prerequisites for issuing a preliminary injunction under Section 32 Paragraph 1 of the Federal Constitutional Court Act (BVerfGG) to provisionally grant benefits to secure livelihood under Book II of the German Social Code (SGB II) are not met if the applicant partially bases his claim for subsistence benefits on documents that were not available to the lower courts when they reached their decisions.
Therefore, in the present case, it was unnecessary to decide whether the court's conclusion that the applicant had so little money available in recent months that he must have received assistance from third parties that would have been taken into account is constitutionally sound, or whether, in light of Article 19 Paragraph 4 of the Basic Law (GG), a decision on the provisional granting of benefits based on a balancing of interests would have been appropriate.
Federal Constitutional Court, decision of 5 September 2017 – 1 BvQ 46/17: dejure.org
2. Decisions of the Federal Social Court of 24 May 2017 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 24 May 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)?
Guiding principle (Editor)
1. Amounts withheld for loan repayment are to be considered as income to be taken into account.
2. The decisive factor is solely that the plaintiff's liability to his employer was reduced by €100 per month through the agreed wage deduction, and the plaintiff thus gained an increase in value by this amount (for the classification of loan repayments as income, see only BSG of 16.5.2012 – B 4 AS 132/11 R).
3. Contrary to the argument raised in the appeal, the principles regarding readily available funds do not preclude the consideration of wages withheld to repay an employer loan as income, at least if the beneficiary retains sufficient funds to cover the minimum subsistence level.
4. The withheld amounts are not deductible from the income to be considered as necessary expenses related to generating income within the meaning of Section 11b Paragraph 1 Sentence 1 Number 5 of the German Social Code, Book II (SGB II), because the purchase of a car by an employee is always a private transaction under income tax law if the vehicle is not a work tool (Federal Fiscal Court [BFH] judgment of October 1, 1982 – VI R 192/79 – BFHE 136, 488). This precludes, in principle, the consideration of related expenses as necessary expenses within the meaning of Section 11b Paragraph 1 Sentence 1 Number 5 of the SGB II beyond the amounts stipulated in Section 6 Paragraph 1 Number 3 Letter a of the former Regulation on Unemployment Benefit II (Alg II-V aF) (cf. regarding the relationship between tax-related business expenses and income adjustment under the SGB II, Federal Social Court [BSG] judgment of June 19, 2012 – B 4 AS 163/11 R; BSG of December 11, 2012 – B 4 AS 27/12 R).
Source: juris.bundessocialgericht.de
3. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – State Social Court Berlin-Brandenburg, Decision of 15 September 2017 – L 14 AS 1469/17 B ER – legally binding
Integration agreement also replaces administrative act – requirements for a concrete reference to circumstances relevant to placement and to the obligations of the beneficiary – health-related restricted employability
Principle (Editor):
The administrative act replacing the integration agreement does not meet the minimum requirements to be observed within the framework of the integration agreement pursuant to Section 15 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), and is therefore unlawful. The stipulations lack sufficient specificity and the necessary binding force.
Source: socialcourtsability.de
3.2 – Berlin-Brandenburg State Social Court, decision of 31.08.2017 – L 31 AS 1462/17 B ER – legally binding
Neediness – Income from criminal offenses – available funds
Principle (Juris)
1.) A decision subject to revocation is deemed unlawful within the meaning of Section 45 of the German Social Code, Book X (SGB X), if the conditions for the grant can no longer be established, unlike in the case of the original grant.
2.) Assets or income obtained through criminal offenses are no longer to be taken into account in the means test only when they are no longer under the control of the claimant.
3.) The job center is not a guarantor for claims by third parties arising from criminal offenses committed by the applicant.
Source: socialcourtsability.de
3.3 – Hessian State Social Court, decision of 28.08.2017 – L 9 AS 228/17 B ER
SGB II benefits - Preliminary legal protection: Expenses for fulfilling statutory maintenance obligations - Deduction from income denied - Expenses actually incurred
It is already doubtful whether the notarized maintenance certificate is a notarized maintenance agreement within the meaning of Section 11b Paragraph 1 Sentence 1 No. 7 SGB II, because the applicant's son was not involved in the declaration.
Guiding principle (Editor)
1. At least in cases where a legal obligation to provide maintenance obviously does not exist or where the person who is obligated to provide maintenance in principle unilaterally commits to payments, the SGB II providers and the courts are authorized to review the question of the legal obligation to provide maintenance.
2. Legally mandated maintenance payments that are not based on a legal obligation are not to be taken into account as deductions from income (BSG, judgment of November 9, 2010 – B 4 AS 78/10 R). The fact that, under Section 11b Paragraph 1 Sentence 1 No. 7 of the German Social Code, Book II (SGB II), the administration is to be relieved of the responsibility for independently determining statutory maintenance claims, at least as a rule, does not preclude an examination of whether the expenses serve the "fulfillment of statutory maintenance obligations" (Federal Social Court [BSG], Judgment of February 8, 2017 – B 14 AS 22/16 R; left open by the Federal Social Court [BSG], Judgment of November 9, 2010 – B 4 AS 78/10 R; differing opinion: Schleswig-Holstein Higher Social Court [LSG], Decision of March 23, 2012 – L 6 AS 32/12 B ER; Higher Social Court [LSG] for the State of North Rhine-Westphalia [LSG], Decision of August 20, 2012 – L 12 AS 918/12 B).
3. At least in cases where a legal obligation to pay maintenance is clearly absent or where the person who is legally obligated to pay maintenance unilaterally commits to making payments, the social security agencies responsible for benefits under Book II of the German Social Code (SGB II) and the courts are authorized to review the question of the legal obligation to pay maintenance.
Source: sozialgerichtsbarkeit.de
3.4 – State Social Court of Saxony-Anhalt, Judgment of 10 May 2017 – L 4 AS 14/16 – legally binding
Principle (Juris)
1. When an application for accrued benefits to secure subsistence under the German Social Code, Book II (SGB II) is rejected, the duration of a benefit period limits the subject matter of the (administrative) procedural dispute in the objection proceedings. Such a limitation – as with rejection notices to be reviewed in legal proceedings – only applies if the objection proceedings are based on a benefit notice that has at least partially granted the applicant's request.
2. Depending on the wording of the decision in each individual case, the provisional approval of a subsidy for health and long-term care insurance contributions may be linked to the final rejection of the application for unemployment benefit II for the other members of the household. The same applies if the provisional approval of the subsidy for health and long-term care insurance contributions is revoked entirely with future effect.
Source: socialcourtsability.de
3.5 – Lower Saxony-Bremen State Social Court, Judgment of 23 August 2017 – L 13 AS 133/17
Social Court Proceedings – Admissibility of the Appeal – Rejection of an Inadmissible Request for Oral Hearing by Decision
Principle (Juris):
A timely but inadmissible application for an oral hearing pursuant to Section 105 Paragraph 2 Sentence 2 of the Social Court Act (SGG) does not render the court order invalid (Section 105 Paragraph 3 Sentence 2 SGG). The Social Court must decide on such an application by order.
Source: www.rechtsprachung.niedersachsen.de
3.6 – Saxon State Social Court, Judgment of 04.05.2017 - L 3 AS 99/12 - legally binding
Regarding the non-recognition of the repayment costs for the house he lives in.
Guiding principle (Editor):
A low purchase price and correspondingly low repayment rates alone do not justify the assumption of financing by the social welfare agency. Even with a low purchase price, the primary focus in such a case remains the aspect of wealth accumulation using funds allocated for basic subsistence, and not the purpose of enabling a benefit recipient to retain their home.
Source: socialcourtsability.de
3.7 – LSG NRW, decision of 08.09.2017 – L 2 AS 1437/17 B
Principle by Attorney Lars Schulte-Bräucker
1. In a dispute concerning the legality of an imposed ban on entering a premises, recourse to the social courts is available, citing BSG, decision of 21.7.14, B 14 SF 1/14 R.
2. The ban on entering the premises must be closely related to the administrative activities of the authorities under the German Social Code, Book II (SGB II).
3. A restriction on future possible appearances in one's own affairs justifies such proximity to the subject matter.
Source: socialcourtsability.de
3.8 – North Rhine-Westphalia State Social Court, decision of 01.09.2017 – L 21 AS 1441/17 B ER – legally binding.
No granting of benefits for the children by means of an interim injunction if the lawyer only applied for benefits for the parents.
Principle (Editor)
1. In the case of an application submitted by a lawyer or other qualified legal representative, it is generally to be assumed that this correctly reflects the applicant's intent (North Rhine-Westphalia State Social Court, decision of 30 November 2015, L 19 AS 1713/15 B ER – referring to Federal Social Court, decision of 5 June 2014, B 10 ÜG 29/13 B).
2. The applicants' children were not parties to the proceedings at first instance. The application for a preliminary injunction concerning benefits under Book II of the German Social Code (SGB II) was filed exclusively by the applicants, who were represented by legal counsel. In view of the clear wording of the application and the nature of benefit entitlements under SGB II as individual claims of each member of the household (Federal Social Court, judgment of May 23, 2013, B 4 AS 67/12 R), the application drafted by legal counsel cannot be interpreted, even by way of the principle of most-favored-nation treatment, as meaning that, in addition to the applicants, their children had also filed an application for preliminary legal protection. The provision of Section 38 Paragraph 1 of the German Social Code, Book II (presumption of authorization) applies exclusively to administrative proceedings, but not to judicial proceedings (Federal Social Court, judgment of 02.07.2009, B 14 AS 54/08 R, and judgment of 07.11.2006, B 7b AS 8/06 R).
Source: socialcourtsability.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Nordhausen, Judgment of 29 May 2017 – S 31 AS 1908/15 – legally binding
Principle (Juris)
1. A prerequisite for the retroactive effect of an application for SGB II benefits according to § 28 SGB X is that the person in need of assistance has previously unsuccessfully applied for a comparable social benefit.
2. The cessation of placement services pursuant to Section 38 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III) is not such a comparable social benefit.
Source: socialcourtsability.de
4.2 – Social Court Magdeburg of 12.09.2017 – S 47 AS 3686/13
Principle by Attorney Michael Loewy
1. The Harz district's guideline for determining the appropriateness of accommodation costs under the German Social Code, Book II (SGB II), is not based on a coherent concept (Company: Analyse & Konzepte) with regard to the municipality of Nordharz, because the relevant comparison area is incorrectly defined (cf. Higher Social Court of Saxony-Anhalt of 11 May 2017 – L 5 AS 547/16).
2. In the absence of suitable alternative data, the table in Section 12 of the Housing Benefit Act (WoGG) plus a safety margin of 10 percent must be used to determine the maximum reasonable rent. [not yet legally binding]
Source: www.anwaltskanzlei-loewy.de
4.3 – Augsburg Social Court, Judgment of 07.09.2017 – S 8 AS 621/17
Regarding the question of entitlement to benefits to secure subsistence under the German Social Code, Book II (SGB II) for Romanian nationals
Principle (Juris)
1. Exclusion of benefits affirmed after the husband moves out following termination without notice.
2. A Union citizen who loses their job through summary dismissal on suspicion of theft cannot invoke the continued effect of their employee status. This is not a case of involuntary unemployment within the meaning of the Freedom of Movement Act/EU. (Paragraph 25) (Editorial note)
3. If spouses separate permanently, a right of residence can no longer be derived, because accompanying or joining a spouse within the meaning of Section 3 Paragraph 1 Sentence 1 of the Freedom of Movement Act/EU is then no longer conceivable. (Paragraph 24) (Editorial note)
4. The exclusion of EU citizens from benefits under the German Social Code, Book II (SGB II), does not raise any constitutional concerns. (Paragraph 41) (Editorial note)
5. The amendments to both laws introduced in December 2016 by the Act on the Regulation of Claims of Foreign Persons in Basic Income Support for Job Seekers and in Social Assistance under Book Twelve of the Social Code demonstrate that the legislator intends to assign persons in need of assistance primarily to the social security system of Book II of the Social Code (SGB II) or, alternatively, to that of Book XII of the Social Code (SGB XII), based on the criterion of employability or its absence. (Paragraph 46) (Editorial note)
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Social Court Kassel – Case No.: S 11 AY 4/17 ER dated 11.09.2017
Legal provisions: Section 3 Asylum Seekers' Benefits Act (AsylbLG), Section 2 AsylbLG – Keywords: Preliminary injunction, analogous benefits, church asylum, no abuse of rights through church asylum
Note to the Court:
The adjudicating chamber follows the corresponding reasoning of the Social Court of Stade in its decision of March 17, 2016 (S 19 AY 1/16 ER, cited according to juris, para. 14 et seq.). The Social Court of Stade denies that the granting of church asylum constitutes an abuse of rights within the meaning of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). In doing so, it correctly refers, in the opinion of the adjudicating chamber, to the case law of the Federal Social Court (BSG) in its judgment of June 17, 2008 (B 8/9 AY 1/07 R).
Source: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen:
www.anwaltskanzlei-adam.de
Legal tip:
Stade Social Court, decision of March 17, 2016 (Case No.: S 19 AY 1/16 ER):
Guiding principle Dr. Manfred Hammel
1. If the state authority temporarily refrains from enforcing the obligation to leave the country, then the individual non-German person is in no way acting in an abuse of rights within the meaning of Section 2 Paragraph 1 AsylbLG.
2. The same applies if the immigration authority actually respects church asylum and tolerates the foreigner's stay for the duration of the church asylum.
3. That churches offer church asylum to non-Germans facing imminent deportation is compatible with the moral values of our society and is also respected by the authorities.
4. This applies especially if the church asylum is immediately reported to the immigration office and tolerated by the responsible authorities.
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Federal Constitutional Court, Decision of 14 September 2017 – 2 BvQ 56/17: Abuse fee due to false statements regarding the urgency of deportation
Federal Constitutional Court, Decision of 14 September 2017 – 2 BvQ 56/17
Legal Norms: Art. 19 para. 4 GG, § 32 para. 1 BVerfGG, § 34 para. 2 BVerfGG, § 71 para. 5 sentence 2 AsylVfG 1992, § 59 para. 1 sentence 8 AufenthG 2004
Rejection of the issuance of an interim injunction regarding deportation to Afghanistan: Lack of substantiation due to failure to submit the issued decisions – On the question of the need for legal protection in cases under § 59 para. 1 sentence 8 AufenthG – Imposition of an abuse fee on the authorized representative in the case of grossly misleading statements regarding urgency.
Source: dejure.org
6.2 – Regulations on retirement without deductions from age 63 are constitutional – Federal Social Court (BSG), 17.08.2017 – B 5 R 8/16 R, B 5 R 16/16 R
Further information: juris.bundessozialgericht.de
Commentary by Prof. Dr. Mathias Ulmer, Judge at the Higher Social Court (LSG) on the decision of the Higher Social Court of Mainz, July 6, 2017 – L 5 KR 135/16: Incapacity for work in another EU country.
Author: Prof. Dr. Mathias Ulmer, Judge at the Higher Social Court (LSG).
Publication date: September 28, 2017.
Legal provisions: Section 6 of Book Four of the German Social Code (SGB IV), Section 30 of Book One of the German Social Code (SGB I), Section 16 of Book Five of the German Social Code (SGB V), Section 216 of the Reich Insurance Code (RVO), Article 6 of the Basic Law (GG), Article 3 of the Basic Law (GG), Section 60 of Book One of the German Social Code (SGB I), Section 52 of Book Five of the German Social Code (SGB V), 32004R0883, 31972R0574, 32009R0987
. Citation suggestion: Ulmer, jurisPR-SozR 19/2017 Note 1.
Source: juris
Incapacity for work in another EU country
The principle
set out in Article 21(1) of Regulation (EC) No 883/04 takes precedence over Section 16 of the German Social Code, Book V (SGB V). A determination of incapacity for work made in Germany does not, in principle, lose its effect simply because the insured person subsequently resides predominantly in another EU country.
Further information: www.juris.de
6.3 – Provisional Benefit Notices and Legal Recourse, an article by Herbert Masslau
Preliminary Remarks
The provisional nature of benefit notices has been enshrined in Section 41a of the German Social Code, Book II (SGB II), since the introduction of the Ninth Act Amending the Second Book of the Social Code on August 1, 2016 [1]. Previously, this was regulated in Section 40 Paragraph 1 No. 1a of the SGB II (old version) and introduced in 2006 [2], and from 2011 onwards as Section 40 Paragraph 2 No. 1 of the SGB II (old version) [3]. The provisional nature of benefit notices under Section 40 of the SGB II refers back to the regulation in Section 338 of the German Social Code, Book III (old/new version).
More information: www.herbertmasslau.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
