1. Decisions of the Federal Social Court of 12 October 2017 on basic income support for job seekers (SGB II) and matters of employment promotion law (SGB III)
1.1 – BSG, Judgment of 12.10.2017 – B 4 AS 37/16 R
Unemployment benefit II – standard allowance – amount for a mixed household with a spouse receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG) – no entitlement to benefits at the standard allowance level for single benefit recipients
Summary:
The decision of the 14th Senate of the Federal Social Court (BSG) of 6 October 2011 – B 14 AS 171/10 R – concerning Section 20 Paragraph 3 of the German Social Code, Book II (SGB II) in the version applicable until 31 December 2010, is not applicable to the relevant period here.
Following the harmonization of benefits on 1 January 2011, Section 20 Paragraph 4 of the German Social Code, Book II (SGB II) is to be applied analogously, at least during the disputed period of 2014, to a person entitled to benefits under the SGB II who lives in a household with a person entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG).
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 12.10.2017 – B 4 AS 19/16 R
Basic income support for job seekers – consideration of assets – special hardship – savings from standard benefits – liquidation of a capital life insurance policy
Principle (Editor)
1. The realization of the life insurance policy, the value of which derives from "unnecessary assistance payments", does not constitute a particular hardship for the plaintiff.
2. The purpose and function of benefits under Book II of the German Social Code (SGB II) do not lead to any leniency in the asset assessment. This is already contradicted by the provision in Section 12 Paragraph 2 of the SGB II. The allowances to be considered under this provision correspond to the concept of the standard benefit as a lump-sum payment. The recipient of benefits should be able to build up reserves for larger purchases from their standard benefit. However, if the legislator intended to subject savings from SGB II benefits to a limited extent to a deduction, it cannot be assumed that assets saved from SGB II benefits would simultaneously be exempt without limit as protected assets, because in that case the provision in Section 12 Paragraph 2 of the SGB II would be rendered meaningless.
Source: juris.bundessocialgericht.de
Note:
"Scrimped for by going without" Even savings from Hartz IV are not safe.
Anyone wishing to receive Hartz IV benefits must be in financial need. Applicants are allowed to have some savings, but there are limits. This applies even if the savings are financed from social assistance payments.
More information: www.n-tv.de
1.3 – BSG, judgment October 12, 2017 – B 11 AL 24/16 R
Actors are entitled to be included in the placement database of the Federal Employment Agency
The Federal Social Court (BSG) has ruled that the Federal Employment Agency must include actors in the placement register maintained by the Central Placement Office for Foreign and Specialist Workers (ZAV).
Source: Press release of the Federal Social Court (BSG) No. 53/2017 dated October 12, 2017: www.juris.de
2. Decisions of the Federal Social Court on basic income support for job seekers (SGB II), matters of employment promotion law (SGB III) and on social assistance (SGB XII)
2.1 – Federal Social Court (BSG), Judgment of 13 July 2017 – B 4 AS 12/16 R
Unemployment benefit II – Accommodation and heating – Utility bill arrears for a no longer occupied apartment – Receipt of benefits both during the period in which the arrears were incurred and at the time they became due – Moving after termination without notice by the landlord with prior approval from the basic income support provider
Summary:
Even when changing residences, there is an entitlement to reimbursement of utility costs for the previous residence if a connection relevant to securing the recipient's livelihood can be affirmed between the additional costs for a previously occupied residence and the current accommodation-related needs of the benefit recipient.
This is to be affirmed in the case of an assurance from the benefit provider regarding the relocation, at least if the beneficiary was receiving benefits under Book II of the German Social Code (SGB II) both at the time the ancillary costs were actually incurred and is still receiving uninterrupted subsistence-level benefits at the time they become due (see already the judgment of the 14th Senate of the Federal Social Court (BSG) of March 30, 2017 – B 14 AS 13/16 R; see also BSG of December 20, 2011 – B 4 AS 9/11 R: assumption of the ancillary cost claim when a cost reduction is requested). These conditions are also met here.
Source: juris.bundessocialgericht.de
2.2 – BSG, decision of 21.03.2017 – B 4 AS 379/16 B
SGB II – Benefits: Entitlement to the removal of bank statements from an administrative act; fundamental objection: proportionate interference with the right to informational self-determination
Principle
1. The fundamental importance of a legal matter can only be demonstrated by stating in the grounds of appeal which legal question seriously arises, the clarification of which is necessary beyond the individual case to be decided for reasons of legal uniformity or the development of the law in the general interest (need for clarification) and whose clarification by the court of appeal can be expected (capacity for clarification).
2. The appellant must therefore explain why the legal question cannot be answered without further ado, taking into account the case law of the highest courts and, where applicable, the literature, and describe the step that the court of appeal should take to clarify the legal question in the public interest.
3. The “collection” of data by including bank statements or photocopies in the files of the basic income support provider is, in principle, to be regarded as a proportionate infringement of the right to informational self-determination.
Source: www.socialrecht-heute.de
2.3 – BSG, Judgment of 12 May 2017 – B 8 SO 23/15
SGB XII benefits, costs for inpatient care, consideration of income, old-age pension, transfer to a current account with a negative balance
Principle
1. If care assistance is provided in an inpatient facility, a distinction must be made between the costs for living expenses (included therein) and other costs (home care costs) when taking income into account.
2. According to Section 82 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), income includes all receipts in money or money's worth, with the exception of benefits under the SGB XII, the basic pension under the Federal War Victims' Relief Act (BVG) and under laws that provide for a corresponding application of the BVG, and pensions or allowances under the Federal Compensation Act for damage to life, body or health, up to the amount of the comparable basic pension under the BVG.
3. As the Senates responsible for basic income support for jobseekers under the German Social Code, Book II (SGB II) have already decided, the transfer of a sum of money to a current account that is overdrawn at that time does not change the inflow itself, because the associated debt repayment is a form of use of funds and does not reduce the amount of income to be taken into account.
4. The adjudicating Senate concurs with this jurisprudence; there are no special features of social assistance law that could justify a different assessment within the framework of Sections 82 et seq. of the German Social Code, Book XII.
Source: www.socialrecht-heute.de
2.4 – BSG, Judgment of 9 June 2017 – B 11 AL 13/16 R
Start-up grant – start date of self-employment – preparatory actions – time commitment – 15 hours per week
Start-up grants for the unemployed only available if they start early – an article by lawyer Thorsten Blaufelder, Blaufelder Law Firm
If unemployed individuals wish to claim a start-up grant from the Federal Employment Agency, they must commence their work in a timely manner. Preparations on the cut-off date are only sufficient if they are substantial in scope, ruled the Federal Social Court (BSG) in Kassel on June 9, 2017 (Case No.: B 11 AL 13/16 R).
Unemployed people who want to become self-employed can receive a subsidy. In practice, however, they must forgo a portion of their unemployment benefits. This is because the new business must be started when they still have at least 150 days of entitlement to unemployment benefits.
Further information:
www.anwalt.de
juris.bundessozialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – LSG Berlin-Brandenburg, Decision of 28.09.2017 – L 18 AS 1984/17 B ER
Entitlement to the assumption of rent arrears despite exceeding reasonable rent costs
Principle (Editor)
1. The sole basis for action must not be the filing of an eviction lawsuit (cf. Federal Constitutional Court, decision of August 1, 2017 – 1 BvR 1910/12).
2. Rent arrears loan possible despite unreasonably expensive rent, since the benefit recipient had already accumulated rent arrears when first applying for ALG II (i.e., the rent for six months was still fully to be taken into account) and he was able to cover the difference between the actual rent and the eligible rent from the standard benefit and expected ALG I benefits even after the six-month transition period had expired.
Source: Lawyer Matthias Göbe, Berlin: https://www.anwalt.de/rechtstipps/miets… 16912.html
Legal tip:
Similarly, LSG Berlin-Brandenburg, 05.02.2009 – L 26 B 2388/08 AS ER, rejected by LSG Baden-Württemberg, 17.10.2011 – L 12 AS 4216/11 ER-B, because despite the assumption of debts, the long-term preservation of the apartment could not be guaranteed.
Full text now also available here: sozialgerichtsbarkeit.de
3.2 – North Rhine-Westphalia State Social Court, decision of October 5, 2017 – L 12 AS 1595/17 B – legally binding
rejection of the granting of legal aid – Hartz IV standard allowance for 2017 constitutional – costs for electricity and mobility – mobility needs – travel expenses for job interviews – See also Dortmund Social Court, June 21, 2017 – S 58 AS 5645/16
Summary:
The determination of the standard benefit rate is not objectionable.
Insofar as the plaintiff argues, by way of example, that the costs for electricity and mobility are not sufficiently taken into account in the standard benefit rate, the Senate is not convinced by this that the amount of the standard benefit rate is unconstitutional. Firstly, the calculation of the costs incurred for household electricity meets the requirements of the Basic Law (see also: Social Court Dortmund, judgment of June 21, 2017, S 58 AS 5645/16).
However, the legislature is obligated to review the calculations for the household electricity needs and, if necessary, to adjust them (Federal Constitutional Court, decision of July 23, 2014, 1 BvL 10/12, 1 BvL 12/12, 1 BvR 1691/13). The legislature has recognized this mandate for review. In order to monitor short-term price developments, the Federal Ministry of Labour and Social Affairs receives from the Federal Statistical Office not only the annual rate of change in prices relevant to standard benefit rates for updating these rates, but also the current index value for this price index on a monthly basis. Furthermore, the Federal Statistical Office publishes data on the development of all important categories of goods and services monthly around the middle of the month, together with its press release on consumer price trends (Bundestag printed matter 18/9984, p. 26).
To the extent that the plaintiff incurs higher energy costs, this does not invalidate the overall evaluation of the Income and Expenditure Survey (EVS). It is inherent in the process that individual data points will be above or below average when calculating average values. Significant deviations of the plaintiff compared to the comparison group tend to indicate excessively high consumption. The legislature has also addressed the issue of the inadequate recording of mobility needs, which was criticized in the Federal Constitutional Court's decision of July 23, 2014 (1 BvL 10/12, 1 BvL 12/12, 1 BvR 1691/13), by amending the evaluation of the 2013 EVS. Now, in addition to households with expenditures for public transportation, expenditures for public transportation are also included in the calculation for all households with fuel expenditures in the general reference group to cover mobility needs.
The plaintiff's argument that a social ticket costs €35.55 per month, and is therefore more expensive than provided for in the EVS (German Federal Ministry of Transport and Digital Infrastructure), does not convince the Senate of its unconstitutionality – and thus of a sufficient prospect of success for the lawsuit. As already explained, the determination of needs by the EVS is not objectionable (cf. regarding the coverage of needs, "Department 07: Transport": Bavarian State Social Court decision of August 23, 2017, L 11 AS 529/17 NZB; Dortmund Social Court judgment of June 21, 2017, S 58 AS 5645/16).
Source: socialcourtsability.de
3.3 – Lower Saxony-Bremen State Social Court, 11th Senate, decision of 31.08.2017 – L 11 AS 836/16 B
Principle (Juris):
If the parties are in dispute (only) about the question of whether the provisionally granted monetary benefits (here pursuant to Section 40 Paragraph 2 No. 1 SGB II aFiVm Section 328 Paragraph 1 Sentence 1 No. 3 SGB III) should have been granted definitively from the outset, the value limit of Section 144 Paragraph 1 No. 1 SGG applies.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Dortmund, Judgment of 25.08.2017 – S 58 AS 3151/15
Principle (Juris)
1. The concept of District V for determining the appropriate accommodation costs of basic income support recipients from December 2015 (Concept 2015) is conclusive.
2. The 2015 concept is valid and applicable from the date of the reference date survey, here August 1, 2015 (following SG Dortmund, judgment of March 17, 2017, file number: S 19 AS 4276/16).
3. Furthermore, the 2015 concept has been valid and applicable since the immediate expiry of the 2013 concept, i.e., since 01.05.2015 (cf. SG Dortmund, judgment of 25.08.2017, file no.: S 58 AS 3151/15).
Source: socialcourtsability.de
4.2 – Social Court Dortmund, Judgment of 25.08.2007 – S 58 AS 3151/15
Principle (Juris)
1. The concept of District V for determining the appropriate accommodation costs of basic income support recipients from May 2013 (Concept 2013) is conclusive.
2. The 2013 concept is only valid and applicable until April 30, 2015.
3. The indexation of an accommodation concept is permissible once after a maximum of two years, in accordance with §§ 558d BGB, 22c SGB II.
Source: socialcourtsability.de
4.3 – SG Leipzig, Judgment of 12.09.2017 – S 9 AS 3050/15
Unemployment benefits and unemployment benefit II: Sanctions if application letters don't arrive? An article by lawyer Sebastian E. Obermaier
A job center issued a sanction notice after the job seeker had been asked to apply for a specific position, but the potential employer then stated that no application had been received and the job seeker (during the hearing regarding the threatened sanction) only had a copy of the application sent by ("regular") mail.
The social court correctly recognized that the sanction notice was unlawful.
First, the court clarified that (unless otherwise agreed in the integration agreement) sending the application as a simple letter is sufficient and that a credible description of the sending is sufficient and it cannot be required that the sending be proven (by documents or witnesses).
The court recognized that, according to the law, the authority bears the burden of proof that the job seeker refused to comply with their obligation to apply for employment, and that the necessary proof is not provided either by the mere fact that the application did not arrive or by the fact that its dispatch is not proven (in the sense of the strict rules of evidence), because this would constitute an unlawful reversal of the burden of proof.
A reversal of the burden of proof is not possible with regard to waiting periods (for unemployment benefits) or reductions (for unemployment benefit II), since unemployment benefits are a social security entitlement covered by the guarantee of property (Article 14 of the Basic Law [GG]) and unemployment benefit II is a right guaranteed in the Basic Law (in human dignity, Article 1 Paragraph 1 GG, and in the social state principle, Article 20 Paragraph 1 GG).
It should be noted that, especially in the case of sanctions, the facts must always be analyzed precisely and the legal situation must always be considered with regard to the rules of evidence.
Source: www.anwalt.de
4.4 – SG Karlsruhe, Judgment of 14.09.2017 – S 17 AS 2015/16
The benefit entitlement is to be reduced proportionally for the time during which a child stays with the separated parent for more than 12 hours
Summary:
Since, due to the legislatively chosen construction of an individual entitlement within a benefit unit under the German Social Code, Book II (SGB II), it is not possible to receive double benefits as a member of two benefit units at the same time, the second plaintiff can only assert a claim for benefits under SGB II within the benefit unit with the first plaintiff for those days on which he stays with her for more than 12 hours in relation to the calendar day.
Furthermore, the plaintiff and his father form a so-called temporary household unit during his regular stays there. The standard daily allowances incurred within this temporary household unit are considered a need of the minor child, who must be able to cover their necessary living expenses even during stays with the non-custodial parent. However, even with regularly alternating stays in two household units, the child is only entitled to allowances for a total of 30 days per month.
Source: www.socialcourt-karlsruhe.de
5. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
5.1 – Lower Saxony-Bremen State Social Court, decision of 19 September 2017 – L 11 AL 29/17
Principle (Juris)
1. To assess whether a revocation pursuant to Section 45 SGB X or a final determination pursuant to Section 328 Paragraph 2 SGB III exists, the objection decision, which forms a legal unit with the original decision (Section 95 SGG), must also be taken into account.
2. If a recipient of vocational training assistance submits an application for an update (§ 67 para. 2 sentence 1 SGB III in conjunction with § 24 BAföG), he must adhere to the different method of calculating parental income according to § 24 para. 3 BAföG in the final decision on the period in dispute, even if this is less favorable for him.
Source: www.rechtsprachung.niedersachsen.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Note on: LSG Stuttgart 7th Senate, Judgment of 20.07.2017 – L 7 AS 2130/14
Author: Tammo Lange, RiSG
Basic income support for job seekers: Existence of a community of responsibility and mutual support
Principle:
If the SGB II benefit provider rejects the granting of benefits and it can be inferred from the decision, at least implicitly (e.g., by attaching calculation sheets or so-called horizontal overviews for certain months), that the rejection only relates to a specific period, the only permissible subject of dispute in the court proceedings is the period for which benefits were rejected.
Further information: www.juris.de
6.2 – Social Law – Assessment Period for Unemployment Benefits After Leave of Absence
Unemployment benefits amount to 67% (increased benefit rate) or 60% (general benefit rate) of the standardized net earnings (benefit earnings) calculated from the gross earnings the unemployed person received during the assessment period. The assessment period comprises the payroll periods of the compulsory insurance employments within the assessment framework that were completed upon termination of the respective employment relationship. The assessment framework covers one year; it ends on the last day of the last compulsory insurance relationship before the entitlement arose (§ 150 para. 1 SGB III). Unlike the assessment framework, the assessment period is determined by the termination of the employment relationship for benefit purposes, not by the termination of the employment relationship for contribution purposes. Periods of irrevocable exemption from the obligation to work are therefore not included in the assessment period (Landessozialgericht München, 19.09.2017, file no. L 10 AL 67/17)
(October 4, 2017 – Your contact person: Lawyer & Specialist Lawyer for Social Law Mathias Klose): www.ra-klose.com
6.3 – SG Fulda: Subsequent billing possible in case of mathematically incorrect calculation of the appearance fee
(VV 3106 RVG; RVG § 14).
An attorney is not prevented from correcting the purely mathematical calculation of the appearance fee (VV 3106 RVG) if a calculation error has occurred. This can be asserted by way of subsequent billing; the res judicata effect of the cost assessment order only applies to the amounts claimed in the application and awarded in the order. (Editorial note)
Social Court Fulda, Decision of 03.07.2017 – S 4 SF 24/17 E, BeckRS 2017, 125283
Commentary by Attorney Dr. Hans-Jochem Mayer, Specialist Attorney for Administrative Law and Specialist Attorney for Employment Law, Bühl
Continue reading: rsw.beck.de
New Edition: Guidelines for Dealing with Unaccompanied Minor Refugees
The new edition of the "Guidelines for Dealing with Unaccompanied Minor Refugees in North Rhine-Westphalia 2017," to which the Federal Association for Unaccompanied Minor Refugees (BumF) contributed, has now been published. These guidelines are also helpful for professionals from other German states. Topics and questions addressed in the guidelines include: legal framework, child and youth welfare law, immigration law, North Rhine-Westphalian regulations, initial contact, initial interview, verification of minority status before taking a minor into care, obligation to appoint a guardian, further procedures under child and youth welfare law, and accommodation and care (initial support).
For further information: www.b-umf.de
Hartz IV: Tips are not counted as income!
Tips are exempt!? Tips are "not fully" counted: Two courts have ruled differently on tips as income, and now an appeal must be filed with the Federal Social Court (BSG) and/or the Federal Constitutional Court (BVerfG).
Hartz IV:
The new ruling on tips from Landshut demonstrates once again that social courts not only hold differing opinions, but are precisely the ones who turn the rule of law on its head! The Landshut ruling can already be considered unlawful, as it fails to take into account the €100 income allowance for supplementary benefit recipients!
Judgment 1: Social Court Karlsruhe, Case No.: S 4 AS 2297/15 of March 30, 2016,
further information: www.freitag.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
