1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Bavarian State Social Court, decision of 11.09.2017
Is the Jobcenter (JC) obliged to inform the applicant, beyond naming the caseworker responsible for him, of the name and personal email address of the acting official at every stage of the administrative procedure?.
Principle (Editor)
1. In the present case, neither a claim for an order nor a ground for an order is credible, because the job center is not obliged to always name the employee acting on behalf of an applicant and to provide them with their personal internal email address.
2. The Federal Social Court has already ruled that such a claim does not arise, in particular, from Section 14 Paragraph 3 of the German Social Code, Book II (SGB II) (cf. regarding the substantively identical Section 14 Sentence 2 of the SGB II in the version applicable until July 31, 2016, Federal Social Court, Judgment of September 22, 2009 – B 4 AS 13/09 R). Nor is there any other provision in the SGB II or in any other social code from which such a claim by the applicant could arise. The statements by the Bavarian State Commissioner for Data Protection cited by the applicant in this regard, as well as the decisions of the Higher Administrative Court of Rhineland-Palatinate of September 10, 2007, and the Schleswig-Holstein State Labor Court of January 23, 2008, relate exclusively to the relationship between the agency and its employees, i.e., to what extent the authority is entitled to publish employee data or to instruct employees to do so, and do not address whether and, if so, to what extent the party to the proceedings has a right against the authority to name the employee involved (always) by name and with their personal internal email address.
Source: socialcourtsability.de
Note:
Job centers are not always required to disclose the names of their employees.
Those receiving benefits under the German Social Code, Book II (SGB II), and the Jobcenter (JC) do not only dispute the amount of basic income support for job seekers before the social courts. Issues of communication can also be the subject of legal disputes.
Press release from the Bavarian State Social Court: sozialgerichtsbarkeit.de
Note 2:
Brief comment by Harald Thomé on this: Thomé Newsletter of October 22, 2017 tacheles-sozialhilfe.de (item 5)
1.2 – North Rhine-Westphalia State Social Court, Judgment of 11 May 2017 – L 6 AS 111/14 – The appeal is admitted.
Regarding the legality of repaying a rental deposit loan by monthly offsetting against the benefit claim under the German Social Code, Book II (affirmed here)
According to the wording of Section 42a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), the provision also covers rental deposit loans. There are no doubts about the constitutionality of Section 42a SGB II.
Principle (Editor)
: 1. Section 42a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) also applies to rental deposit loans (see also Conradis in LPK-SGB II, 5th edition 2017, Section 42a, marginal notes 1, 2; Bender in Gagel, SGB II, as of March 2017, Section 42a, marginal note 4; Boerner in Löns/Herold-Tews SGB II, 3rd edition 2011, Section 42a, marginal notes 2, 3; Greiser in Eicher, SGB II, 3rd edition 2013, Section 42a, marginal note 23; left open by the Federal Social Court (BSG) decision of June 29, 2015 – B 4 AS 11/14 R; judgment of June 25, 2015 – B 14 AS 28/14 R; contra and on the current state of opinion, see Nguyen, Social Code, Book II (SGB II)). 2017, 202).
2. Section 42a paragraph 2 sentence 1 of the German Social Code, Book II (SGB II) applies to all loans under the SGB II to a member of the household receiving benefits, and thus also to rental deposit loans; it does not raise any fundamental constitutional concerns.
3. The overall regulatory concept available adequately addresses the constitutional concerns arising from a longer-term shortfall of 10 percent below the socio-cultural subsistence minimum.
Source: socialcourtsability.de
Legal tip:
The Higher Social Court of North Rhine-Westphalia (LSG NRW) holds a different view. Judgment of June 29, 2017 – L 7 AS 607/17 – Appeal pending B 14 AS 31/17 R
1.3 – North Rhine-Westphalia State Social Court, Judgment of 21 September 2017 – L 7 AS 1357/15
Regarding the crediting of income from self-employment as a translator and interpreter – current account credit
Principle (Editor)
1. Utilizing the overdraft facility granted on a business account does not constitute business income. Only the increase in value constitutes income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II); a loan is not income in cash or in kind (Federal Social Court judgment of June 17, 2010 – B 14 AS 46/09 R). By utilizing the overdraft facility, the plaintiff obtained a loan from his bank within the meaning of Section 488 of the German Civil Code (BGB), which he is obligated to repay. For this reason alone, the loan cannot be considered income.
2. Since no business loan existed in the first place, the question arises whether business loans are to be considered business income pursuant to Section 3 of the former version of the German Social Code, Book II (SGB II-V) (as was the case before the grounds for the Federal Social Court's judgment of June 17, 2010 – B 14 AS 46/09 R – and the decision of the Higher Social Court of North Rhine-Westphalia of November 24, 2010 – L 19 AS 1754/10 B ER, as well as Geiger in LPK-SGB II, 6th edition, Section 11, marginal note 80) or whether the provision now resulting from Section 3, paragraph 3 of the SGB II-V, that business loans are not to be considered income, was already intended to apply previously and the provision regarding business loans was only included for clarification (as convincingly argued by the Higher Social Court of Berlin-Brandenburg in its judgment of June 12, 2015 – L 25 AS 3370/13, referring to the legislator's statements; the result was the same). also with convincing reasoning (Lower Saxony-Bremen Social Court judgment of 23.04.2012 – L 9 AS 757/11).
3. Since the overdraft facility is not to be considered as income, the plaintiff has not earned any assessable income.
Source: socialcourtsability.de
1.4 – North Rhine-Westphalia State Social Court, Judgment of 24 August 2017 – L 7 AS 965/15 – The appeal is granted.
The question is whether the plaintiff's income was derived from self-employment as the managing partner of a two-person limited liability company and is to be taken into account (here answered in the negative).
No income from self-employment – self-employed managing director of the GmbH – no payment of salaries – no consideration of business income as the plaintiff's income
The highest court has not yet clarified what applies in detail when several persons are involved in a company (cf. Federal Social Court judgment of 22.08.2013 – B 14 AS 1/13 R on limited partnerships; Bavarian State Social Court judgment of 21.03.2012 – L 16 AS 789/10 on limited partnerships; Baden-Württemberg State Social Court judgment of 23.02.2016 – L 9 AS 2108/13 on limited liability companies).
Summary:
The plaintiff's share in the GmbH is not to be considered as realizable assets.
The salary of EUR 3,500 to which the plaintiff is entitled under the employment contract does not constitute income, because the salary was set at EUR 0 by a shareholder resolution.
The contributions paid directly to the insurer by the GmbH (limited liability company) for retirement provision are also not to be considered income. Firstly, this constitutes a designated payment within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II), which does not improve the recipient's situation to such an extent that benefits under this book would not be justified. The predecessor provision of Section 11a Paragraph 3 SGB II was broader, and the case law on the new provision cannot be directly applied to the previous one (Schmidt in Eicher, SGB II, 3rd edition, Section 11a, marginal note 14; cf. regarding the old legal situation, Federal Social Court (BSG) judgment of September 30, 2008 – B 4 AS 19/07 R).
The GmbH's operating income during the period in dispute cannot be considered as the plaintiff's income. The Senate can leave open the question of whether the GmbH's operating income constitutes income from a trade or business (§ 3 Alg II-V 2008) or income from capital assets (cf. § 4 sentence 2 no. 3 Alg II-V 2008; for the distinction between the types of income, see BSG judgment of 22.08.2013 – B 14 AS 1/13 R), the latter of which would mean that an even distribution over the benefit period would not be possible and the contested decision would also be partially unlawful for this reason.
The GmbH's operating income during the period in dispute cannot be considered as income of the plaintiff (1). The Senate can leave open the question of whether the GmbH's operating income constitutes income from a trade or business (§ 3 Alg II-V 2008) or income from capital assets (cf. § 4 sentence 2 no. 3 Alg II-V 2008; for the distinction between the types of income, see BSG judgment of 22.08.2013 – B 14 AS 1/13 R), the latter of which would mean that an even distribution over the benefit period would not be possible and the contested decision would also be partially unlawful for this reason.
The plaintiff also had no direct claim to an advance payment on an expected profit. The law does not provide for a monthly or even semi-annual profit distribution resolution (see LSG Saxony-Anhalt, decision of 22.12.2011 – L 5 AS 441/11 B ER, SG Aachen judgment of 24.11.2015 – S 14 AS 128/15).
Source: socialcourtsability.de
1.5 – North Rhine-Westphalia State Social Court, decision of 27.07.2017 – L 21 AS 782/17 B ER – legally binding.
Romanian applicant has no entitlement to ALG II/ SGB X II benefits.
Principle (Editor):
1. The Senate has no constitutional concerns regarding the exclusions from benefits under Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII) as amended, and Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) as amended, even in light of the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 of the German Basic Law in conjunction with Article 20 Paragraph 1 of the German Basic Law) (as already held by the Higher Social Court of North Rhine-Westphalia, decision of July 5, 2017 – L 9 SO 213/17 B ER, L 9 SO 314/17 B). In particular, it is not constitutionally objectionable if the legislature, by enshrining the subsidiary nature of the German social welfare system compared to that of the country of origin, establishes the subordination of the German social welfare system to that of the country of origin by excluding EU citizens who derive their right of residence solely from the purpose of seeking employment or who do not possess a substantive right of residence. Because these persons can be referred to claim benefits from their home country to secure their livelihood or to exercise their right to freedom of movement within the territory of the EU (LSG NRW, aa O., mw N.).
2. Consequently, there is no constitutional obligation on the part of the legislature to enable the residence of a person in need of assistance in the federal territory, despite the possibility of their return to their country of origin, by granting social benefits, if the person in need of assistance has no right of residence at all or only has a right whose granting the national legislature has originally – and permissibly under European law (cf. ECJ, Judgment of 15 September 2015 – C 67/14 – Alimanovic) – linked to the denial of benefits to secure the minimum subsistence level (LSG NRW, loc. cit.)
Source: socialcourtsability.de
See also the guiding principle (Juris)
1. The right of residence pursuant to Section 11 Paragraph 1 Sentence 11 of the Freedom of Movement Act/EU in conjunction with Section 28 Paragraph 1 Sentence 1 No. 3 of the Residence Act grants the foreign parent of a minor unmarried German a right to a residence permit for the purpose of exercising parental custody.
2. Article 18 of the Treaty on the Functioning of the European Union (TFEU) does not require, in proceedings for interim legal protection, the analogous application of this provision to the reunification of a foreign parent with a minor unmarried Union citizen, with the consequence that the exclusion from benefits under Section 7(1) sentence 2 no. 2b of the German Social Code, Book II (SGB II) would necessarily be inapplicable.
3. The scope of protection afforded by Article 6, paragraphs 1 and 2 of the Basic Law is not violated. Article 6 of the Basic Law does not establish a direct right to residence or social benefits. For EU citizens, a family life of parents and children can regularly take place not only in Germany.
1.6 – Berlin-Brandenburg State Social Court, Judgment of 27 September 2017 – L 18 AS 932/17
Regarding the payment of school fees of EUR 92 per month for attending a private Waldorf school – consideration of additional needs
Guiding principle (Editor)
1. The prerequisites for the recognition of school fees as additional needs within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) are not met.
2. Although the costs arising from a training contract with a private provider (tuition fees) are not considered part of the standard needs allowance, as they are only incurred by individual students who, like the plaintiff, do not attend a public – and therefore free – school (LSG Berlin-Brandenburg, decision of October 23, 2006 – L 19 B 599/06 AS ER), the general need for schooling of children and young people is adequately met due to the fact that public schools, through which the state fulfills its educational mandate (cf. Art. 7 para. 1 Basic Law – GG), are free of charge.
Source: socialcourtsability.de
Legal tip:
See LSG Saxony-Anhalt, decision of 24.02.2014 – L 4 AS 638/12 B – No payment of additional needs within the meaning of § 27 para. 2 SGB II in conjunction with § 21 para. 6 SGB II for the applicant's monthly school fees – It is questionable whether the school fees can be covered by the provision of § 21 para. 6 SGB II.
1.7 – Berlin-Brandenburg State Social Court, decision of 26.09.2017 – L 18 AS 2092/16
Assignment for a work opportunity with additional expense allowance – compensation for value – obligation arising from a social security relationship
Summary:
The plaintiff's claim for compensation is precluded because he violated his obligation under the social security law relationship to the defendant to inform the defendant of any potentially unlawful circumstances – in this case, the possible lack of additionality of the work – and to provide an opportunity for remediation if further claims were to be derived from the underlying relationship. The question of whether the legal basis for the work is an integration agreement or an administrative act is irrelevant in this respect (see Federal Social Court, Judgment of August 22, 2013 – B 14 AS 75/12 R).
Such notification is also generally reasonable for a benefit recipient and corresponds – albeit not directly – to the obligations under Section 60 Paragraph 1 Sentence 1 Numbers 1 and 2 of the German Social Code, Book I (SGB I), to provide information on facts that are relevant to the benefit and to report any such changes. If he fails to provide this information, there is no longer any entitlement to compensation from the point at which he could have been aware of the error; rather, a limitation of the claim is to be assumed from the point in time at which there would have been reason, even from a layperson's perspective, to point out the error in the allocation to the defendant ("something is going wrong here"; cf. BSG aaO).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Berlin, decision of 12/19/2017 – S 186 AS 11916/17 ER
Suspensive effect – Integration administrative act unlawful because it does not specify a period of validity – is to remain in effect until further notice
Principle (Editor)
1. Even under the new law, the following applies: An administrative act replacing an integration agreement is unlawful if the legally prescribed period of validity is exceeded without discretionary considerations (cf. Bavarian State Social Court, decision of 08.06.2017 – L 16 AS 291/17 B ER).
Legal tip:
See Cologne Social Court, judgment of 23 June 2017 – S 33 AS 691/17 and Nordhausen Social Court, decision of 30 September 2016 – S 27 AS 1695/16 ER
Source: Attorney Kay Füßlein, Berlin: On the validity period of an administrative act replacing the integration agreement: www.ra-fuesslein.de
2.2 – Social Court Lüneburg, decision of 28.08.2017 – S 30 AS 211/17 ER
Loan-based provision of additional benefits for school supplies (affirmed here) – Section 28 Paragraph 3 SGB II – graphing calculator
SG Lüneburg: Entitlement to a loan for the purchase of a calculator for students
Guiding principle (Editor)
1. It is already controversial whether the granting of benefits for education and participation within the framework of a lump sum meets the constitutional requirements of the Federal Constitutional Court in its decision of February 9, 2010 (1 BvL 1/09, 1 BvL 3/09 and 1 BvL 4/09), since it is doubtful whether the lump sum granted can actually cover the actual need (Gagel/Thommes, RN 15 to § 28 SGB II with further references).
2. In the aforementioned decision, the Federal Constitutional Court established that fulfilling compulsory education creates a particular existential need for children. Without acquiring the necessary school supplies such as textbooks, notebooks, or calculators, etc., children cannot attend school successfully. Therefore, excluding these costs threatens to deprive children of life opportunities (Federal Constitutional Court, ibid.).
3. Therefore, insofar as it is proven that the lump sum under Section 28 Paragraph 3 of the German Social Code, Book II (SGB II) cannot cover the child's school needs, the refusal of benefits would be unconstitutional.
4. In cases such as this, the application of Section 24 of the German Social Code, Book II (SGB II), and thus the granting of a loan, is warranted. The respondent's assertion that the lump sum under Section 28 Paragraph 3 of the SGB II covers the entire standard allowance for education and participation benefits is incorrect.
Source: www.rechtsprachung.niedersachsen.de
Legal tip:
SG Cottbus, Judgment of 13.10.2016 – S 42 AS 1914/13
SG Cottbus: Entitlement to a subsidy for the purchase of a computer for students.
The costs for a one-time purchase of an internet-enabled PC worth EUR 350 are to be covered on a subsidy basis within the framework of the needs according to § 21 para. 6 SGB II.
The Social Court of Cottbus (judgment of October 13, 2016 – S 42 AS 1914/13) justified its decision as follows:
Schooling is a long-term endeavor, and therefore a PC represents a long-term need and thus "without doubt" an ongoing necessity. The price is unavoidable, and the Federal Constitutional Court has pointed out that additional needs essential for survival must be met in addition to the standard allowance.
Thomé Newsletter 04/2017 from January 22, 2017: tacheles-socialhilfe.de
2.3 – Potsdam Social Court, Judgment of 12 July 2017 – S 49 AS 2572/15 – Appeal pending before the Higher Social Court of Brandenburg under file number L 10 AS 1693/17.
On the legality of offsetting a rental deposit loan over 22 months with a monthly amount of 39.90 euros (affirmed here).
The point at which the monthly reduction is no longer merely temporary is a matter of legal debate and has not yet been decided by the highest court.
Guiding principle (Editor):
For a period of more than three years, a cap must be set by means of a constitutionally compliant interpretation in accordance with the provisions of Section 43 Paragraph 4 Sentence 2 of the German Social Code, Book II (see also the judgment of the 49th Chamber of the Social Court of Potsdam, S 49 AS 305/16 of June 14, 2017, cf.; Higher Social Court of North Rhine-Westphalia, decision of March 27, 2014, file number: L 19 AS 332/14 B).
Source: socialcourtsability.de
2.4 – Potsdam Social Court, Judgment of June 14, 2017 – S 49 AS 305/16 – Appeal pending before the Brandenburg Higher Social Court under file number L 29 AS 1644/17.
Regarding the legality of offsetting a rental deposit loan over a total of four years and ten months (here denied).
Guiding principle (Editor):
For periods exceeding three years, a cap is set by means of a constitutionally compliant interpretation in accordance with the provisions of Section 43 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2.5 – Social Court Magdeburg, judgment of 12 September 2017 (Case No.: S 47 AS 3686/13):
Guiding principle by Dr. Manfred Hammel:
1. A district, used as a reference area for determining the appropriateness of housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), does not constitute a homogeneous living and residential area if, within a total area of 2,104.54 square kilometers, it is characterized by significant differences in population density, economic structures, and traffic conditions. The fact that the medium-sized towns are interconnected by transport links does not alter this.
2. In this context, further comparison spaces must be formed to determine the conclusive concept.
Full text here: www.anwaltskanzlei-loewy.de
2.6 – Duisburg Social Court, Judgment of 12 October 2017 – S 41 AS 1299/16
Regarding the question of whether the basic allowance of EUR 100.00 is to be taken into account twice if the beneficiary receives in one month both the remuneration for an employment relationship that ended in the previous month and the remuneration for a new employment relationship that began in that month (here answered in the affirmative)
Summary:
Section 11b Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II aF) is to be understood as meaning that the basic allowance of EUR 100.00 is to be granted for each month for which income is received, regardless of the time of receipt, in cases such as the present one, in which there was a change in employment and income for two different months was received in one month.
The wording of the law leaves open whether the deduction of €100 per month refers to the total income received in a given month, or whether this provision relates to the income the benefit recipient receives for work performed in a given month. A teleological interpretation of the provision reveals that the latter is the intended interpretation. A teleological interpretation examines the meaning and purpose of a legal norm, its ratio legis. Therefore, it is necessary to ascertain what the law intended (see, e.g., Kuhn, JuS 2016, 104 with further references). The primary motivation for introducing the basic allowance was to significantly increase the incentive to take up or maintain employment that does not cover basic needs (Federal Social Court, Judgment of July 17, 2014 – B 14 AS 25/13 R). According to the aforementioned case law of the Federal Social Court, the income adjustment for the receipt of more than one month's salary within a single month only serves this purpose of the law, at least in cases of additional earnings from only one employment relationship, if it takes into account the period in which the income to be adjusted was earned and for which it was paid (Federal Social Court, loc. cit., para. 14).
While this case law of the Federal Social Court expressly refers only to additional earnings from only one employment relationship, it is not apparent to the court, based on the purpose of the law, why this legal principle should not also apply to cases such as the present one, in which, ultimately by chance, after the termination of one employment relationship and the commencement of a new one, the wages for the last month of the old employment relationship and the wages for the first month of the new employment relationship were paid out in the same month.
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Asylum Law
3.1 – LSG Berlin-Brandenburg, decision of July 19, 2017 (Case No.: L 15 AY 12/17 B ER):
Guiding principle Dr. Manfred Hammel
1. Analogous benefits pursuant to Section 2 AsylbLG are not possible for persons who fall under Section 1a Paragraph 4 Sentence 2 AsylbLG nor under the conditions of Section 1a Paragraph 2 Sentence 3 AsylbLG, because on this basis only monetary benefits pursuant to Section 3 Paragraph 1 Sentence 1 AsylbLG – as a rule as benefits in kind – can be granted.
2. This is acceptable as long as it actually covers the current minimum standard of living that ensures human dignity.
Note:
No benefit reduction for pending second application procedures of refugees recognized in Greece: www.asyl.net
4. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
4.1 – Unlawful sanction notices – statute of limitations is approaching – an article by attorney Kay Füßlein, Berlin
According to the Federal Social Court's jurisprudence, a sanction notice must contain two statements:
a declaration of the sanction
and the revocation of the relevant benefit award notice pursuant to Section 48 of the German Social Code, Book X (SGB X)
. The latter point, in particular, was often overlooked:
In my client's case, it was determined that he had committed a breach of duty. However, the revocation was not ordered. The sanction notice became legally binding.
After the Federal Social Court published the aforementioned ruling, the Job Center was requested to pay the benefits awarded under the benefit award notice. After the deadline expired, a lawsuit was filed to recover the withheld benefits.
Unfortunately, in the oral proceedings, the Job Center had no further arguments to justify withholding the money.
Since social benefit claims are also subject to a statute of limitations (specifically, four years), it is advisable to carefully examine sanction notices and take measures to prevent the statute of limitations from expiring (e.g., filing a lawsuit).
Source: www.ra-fuesslein.de
4.2 – VG Berlin, Decision of 18 October 2017 – VG 23 L 747.17
Police law is not a means of permanently combating homelessness
Homeless people cannot permanently claim accommodation on the basis of police law, according to an emergency ruling by the Berlin Administrative Court.
More information: www.berlin.de
4.3 – Guidance from the German Association on securing the livelihood of trainees under the German Social Code, Book II (SGB II)
– further information: www.deutscher-verein.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
