1. Decisions of the Federal Social Court of October 25, 2017 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of
October 25, 2017 - B 14 AS 35/16 R On the additional payment of child allowance according to § 6a BKGG as income not to be taken into account within the meaning of SGB II.
Short version:
Contrary to the opinion of the SG, the non-consideration of the child allowance according to § 6a BKGG does not result from equating the child allowance with the benefits to secure a living according to § 11a Paragraph 1 No. 1 SGB II, but from the modified one applicable in SGB II Inflow theory. According to this, the actual inflow of income is to be assumed, unless a different inflow is legally determined to be decisive (stRspr since BSG of July 30, 2008 - B 14 AS 26/07 R; most recently BSG of May 24, 2017 - B 14 AS 32/16 R). Such a different legal assignment arises for the child allowance from the special meaning and purpose of this benefit and its systematic connections with the benefits according to SGB II.
The child allowance is intended to avoid the need for help according to SGB II and, due to the monthly principle in SGB II (cf. its § 11 Paragraph 2, 3, § 41), it can only do this if it is received in the respective month for which it is intended and in this is taken into account. The consideration of the child allowance for August in September, based on the actual payment date in September, cannot result in the avoidance of the need for assistance in August, as intended by the child allowance.
Source: juris.bundessocialgericht.de
1.2 – BSG, judgment of October 25, 2017 – B 14 AS 4/17 R
Covering the costs of repairing glasses is controversial.
Guiding principle (editor)
Repair costs for glasses represent a special need i. S.d. Section 24 Paragraph 3 Sentence 1 No. 3 SGB II.
Short version:
The special needs according to Section 24 Paragraph 3 Sentence 1 No. 3 SGB II were introduced to cover needs that were not included in the determination of the standard needs (see BT-Drucks 17/3404 S 102 f). The “repairs of therapeutic devices and equipment” recorded under code 0613090 as part of the underlying income and consumption sample (EVS) 2008 (BT-Drucks 17/3404 S 58, 140) were not included in the determination of standard requirements within the framework of the RBEG 2011 ). According to the Federal Statistical Office's instructions for filling out the EVS 2008, the phrase “therapeutic devices and equipment” also included glasses.
Accordingly, the repair of glasses was entered into a category as part of the EVS 2008, which was not included in the standard needs assessment and whose needs are to be covered by the special needs according to Section 24 Paragraph 3 SGB II.
Source: juris.bundessocialgericht.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - State Social Court of Saxony-Anhalt, judgment of August 23, 2016 – L 4 AS 480/14 – legally binding
Unemployment benefit II – accommodation and heating – heating and operating cost credits generated from your own resources – credited in full
Guiding principle (Juris)
1. Repayments and credits that are allocated to the needs for accommodation and heating (KdU) were to be credited in full to the KdU expenses in the following month by July 31, 2016, even if they - due to SGB II -Performers who are not fully “recognized” KdU due to a lack of appropriateness – were partly “earned” from their own resources. According to Section 22 Paragraph 3 SGB II in the version valid until July 31, 2016, an exception was only provided for repayments that relate to the costs of household energy (Section 22 Paragraph 3 Clause 2 SGB II old version).
2. It was only through the new regulation with effect from August 1, 2016 that the exception to Section 22 Paragraph 3 Clause 2 SGB II was extended to “unrecognized expenses for accommodation and heating”. Previously, a proportionate disregard was not an option due to the clear wording of Section 22 Paragraph 3 SGB II old version.
Source: socialcourtsability.de
2.2 – State Social Court of Saxony-Anhalt, judgment of October 19, 2016 – L 4 AS 736/15 – legally binding
Guiding principle (Juris)
1. The case law of the BSG (judgment of June 25, 2015, B 14 AS 17/14 R) on the analogous application of Section 11a Paragraph 1 No. 1 SGB II to benefits under the AsylbLG is on (back) payments of services according to the WoGG are not transferable.
2. Since the plaintiff actually received the additional housing benefit payment in February 2014, its inclusion as income - as explained above - results directly from the legal regulation of Section 11 Paragraph 1 Sentence 1 and Paragraph 2 Sentence 1 SGB II.
Source: socialcourtsability.de
2.3 – State Social Court of Saxony-Anhalt, judgment of January 19, 2017 – L 2 AS 640/14 – legally binding
Unemployment benefit II - accommodation and heating - inadequacy of heating costs - no consideration of the house property due to particular hardship - no obligation to reduce costs - overall consideration of the expenses for accommodation and heating
Compensation of “appropriate accommodation costs” with “unreasonable heating costs” is also possible for residents of owner-occupied residential property.
The possibility of an overall assessment of the expenses for accommodation and heating has been possible since the Federal Social Court's ruling of June 12, 2013 (B 14 AS 60/12 R) for the lack of an obligation to reduce costs and since August 1, 2016 through Section 22 Paragraph 10 SGB II for the overall adequacy limit clarified.
Guiding principle (Juris)
1. Even for those entitled to benefits who live in their own home, an overall assessment of the expenses for accommodation and heating should be considered as part of the examination of cost reduction obligations.
2. As long as a self-inhabited home cannot be used according to Section 12 Paragraph 1 SGB II or is not considered as an asset according to Section 12 Paragraph 3 SGB II, the protected assets are to be treated as if they did not exist because of this protection.
3. On the possibility of an overall consideration of the KdU according to the case law of the BSG (judgment of June 12, 2013, Az B 14 AS 60/12 R, juris) for private homes.
Source: socialcourtsability.de
Note:
SG Neubrandenburg, judgment of. February 21, 2017 – S 12 AS 973/12
To cover additional heating costs of around 1000 euros for a house you live in (here affirmative).
Guiding principle (editor)
Objectively unreasonable heating costs in the sense of an extended product theory are to be taken into account even if the accommodation costs are correspondingly lower, so that when looking at the whole (accommodation and heating costs), it can be assumed that the costs are reasonable overall.
Note Attorney Alexander Schmidt, Neubrandenburg
If it is a very cheap apartment, unreasonable heating costs may also have to be covered as additional payment, because the reference to the federal heating index does not release the job center from determining the appropriate heating costs in individual cases, provided that the possible causes are higher Heating costs were clearly described. Furthermore, an overall assessment of the accommodation costs must be made.
Legal tip: (in this sense also BSG, judgment of June 12, 2013, B 14 AS 60/12 R, (Rn. 33)); SG Schleswig, decision of December 11, 2015 - S 16 AS 208/15 ER
2.4 – State Social Court of Saxony-Anhalt, judgment of January 31, 2017 – L 4 AS 28/15 – legally binding
On the income recognition of private withdrawals from a small business operated by the plaintiff (“ice cream and café house”)
Other private withdrawals do not increase income because they are already taken into account when calculating profits for tax purposes (Section 4 Paragraphs 1 and 3 EStG).
Guiding principle (editor)
1. The failure to take private income into account as income within the meaning of Section 11 SGB II results from the fundamental consideration that private withdrawals are based on the self-employed person's right to dispose of their business assets and are therefore taken from the substance. As an invoice item when comparing business assets (see Section 4 Paragraph 1 EStG), they are not the result of entrepreneurial activity and therefore not income. Such other private withdrawals do not have the effect of increasing income because they are already taken into account when determining profits for tax purposes (see State Social Court [LSG] Berlin-Brandenburg, decision of April 24, 2007 - L 26 B 422/07 AS ER; LSG Baden- Württemberg, decision of April 4, 2008 - L 7 AS 5626/07 ER-B; see also Federal Social Court [BSG], judgment of July 30, 2008 - B 14 AS 44/07 R).
2. Private withdrawals from a company run by the benefit recipient are not to be taken into account as income within the meaning of Section 11 SGB II if no profit has been generated in the current financial year. In this constellation, the withdrawal is based solely on the self-employed person's authority to dispose of his business assets and only includes access to the substance of the company.
Source: socialcourtsability.de
Legal tip:
Likewise, State Social Court of Saxony-Anhalt, judgment of January 31, 2017 – L 4 AS 27/15 – legally binding
2.5 – Berlin-Brandenburg State Social Court, judgment of
August 31, 2017 - L 20 AS 1182/15 - Appeal pending at the BSG under the number: B 14 AS 37/17 R So-called "children's housing benefit" - consideration as income for the child - ratio: housing benefit - SGB II benefits
Guiding principle (editor)
Housing benefit is monetary income within the meaning of Section 11 Paragraph 1 Sentence 1 SGB II. Taking into account Sections 11a and 11b SGB II, housing benefit is to be taken into account as income. Housing benefit according to the WoGG provides income to be taken into account in the form of current income i. S.d. § 11 Paragraph 1 Sentence 1 1st part of the sentence, Paragraph 2 in conjunction with § 4 Sentences 1 and 2 No. 1 Alg II-V 2008/10 (see Adolph in Linhard/Adolph, SGB II, SGB XII and AsylbLG, as of II/2010, § 11 SGB II Rn 34; LSG North Rhine-Westphalia May 9, 2007 – L 12 AS 52/06 with further references).
Source: socialcourtsability.de
Note:
No legal basis for considering housing benefit as income - legal loophole? Resolution of the 32nd Senate of the Berlin-Brandenburg State Social Court of June 9, 2017 in proceedings L 32 AS 416/16: www.ra-jtlehmann.de
2.6 – State Social Court of North Rhine-Westphalia, decision v.
September 26, 2017 - L 6 AS 380/17 B ER - legally binding Bulgarian applicants are not excluded from SGB II benefits - Other independent right of residence for children due to training - Right of residence according to Art. 10 Regulation No. 492/2011
The exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 c SGB II violates the principle of equal treatment in accordance with Article 4 of Regulation (EC) 883/2004.
Guiding principle (editor)
1. Here, both the applicant as the father of the children in school and the applicant as the child's mother can in any case rely on the right of residence derived from Article 10 of Regulation (EC) No. 492/2011 due to presence and care appointed as the children's parents with legal custody and custody. The right of residence of a parent with custody derived from Article 10 of Regulation 492/11/EU only ends, among other things, when the loss of his or her right of residence is determined in accordance with the provisions of the FreizügG/EU, with the immigration authorities being solely responsible for the latter (LSG NRW decision from January 27, 2016 – L 19 AS 29/16 B ER). This also applies for the period from December 2nd, 2016 until the entry into force of Section 7 Paragraph 1 Sentence 2 No. 2 c) SGB II new version on December 29th, 2016.
2. If the requirements of Section 7 Paragraph 1 Sentence 2 No. 2 c) SGB II nF are met, the exclusion of benefits has no effect due to the priority of application of European social law (see also LSG NRW judgment of November 28, 2013 - L 6 AS 130 /13). Here this follows from the violation of the regulation against the requirement of equal treatment in Article 4 of Regulation (EC) 883/2004). The respondent is obliged to provide benefits.
3. In this context, the guaranteed basic family right in the form of the protected coexistence of children with their parents - even if they are unmarried - a core area of Article 6 of the Basic Law (GG), also speaks significantly in favor of the mother's independent right of residence. The biological unmarried mother of children whose father derives a right of freedom of movement from a professional activity also forms a family with them within the meaning of Article 6 of the Basic Law. The children are also dependent on the mother to exercise actual parental responsibility.
Source: socialcourtsability.de
Legal tip:
Note on: LSG Essen 6th Senate, resolution of August 1st, 2017 - L 6 AS 860/17 B ER
Author: Prof. Dr.
Stamatia Devetzi Entitlement of the school-age child of a Union citizen to basic security benefits and derived right of residence of the parent with custody
Guidance sentences
1. The school-age children of a Union citizen have an original right of residence in accordance with Article 10 of Regulation (EU) 492/2011.
Because the children cannot exercise their right of residence without the custodial parent, the parent has a right of residence derived from Article 10 of Regulation (EU) 492/2011 (BSG, judgment of December 3, 2015 - B 4 AS 43/15 R). 2. According to Section 7 Paragraph 1 Sentence 2 No. 2c SGB II, the exclusion of benefits for foreigners has no effect.
3. The exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2c SGB II violates the principle of equal treatment in accordance with Article 4 EC Treaty No. 883/2004.
4. The right of residence under Article 10 of Regulation (EU) 492/2011 is not dependent on sufficient means of subsistence and comprehensive health insurance coverage being available.
more Juris: www.juris.de
2.7 – Saxon State Social Court, decision v. 11.092017 – L 7 AS 595/17 B ER – legally binding
The applicant is not excluded from receiving benefits according to Section 7 Paragraph 4 SGB II because he does not receive a retirement pension
Guiding principle (editor)
1. The applicant is not excluded from benefits according to Section 7 Paragraph 4 SGB II. According to the standard mentioned, anyone who receives an old-age pension or similar public law benefits does not receive benefits under SGB II. According to the wording of the standard for the exclusion of benefits, the actual reference is important (Korte/Thie in LPK-SGB II, 6th ed. § 7, Rn. 115; BT-Drucksache 16/7460, p. 12; cf. also LSG North Rhine-Westphalia, decision of February 10, 2014 - L 19 AS 54/14 B ER; LSG Berlin-Brandenburg, decision of April 29, 2011 - L 5 AS 525/11 B ER).
2. Contrary to the respondent's opinion, a mere existing entitlement to a pension without actual receipt is not sufficient as a reason for exclusion of benefits.
Source: socialcourtsability.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – Karlsruhe Social Court, judgment of August 9, 2017 – S 5 AS 750/17
accommodation and heating needs; Appropriateness; coherent concept; Burden of proof for a specific accommodation alternative; 9-person household; Search efforts
For Rastatt there is no coherent concept for determining the appropriateness limit.
Guiding principle (Juris)
If the job center does not have a coherent concept for determining the abstractly appropriate accommodation costs and there are other special features (here: community of needs consisting of nine people), it is the job center's responsibility to prove to those entitled to benefits that apartments are actually available at what is considered appropriate considered price will be offered. The job center bears the burden of proof for this. If the job center is unable to provide proof, it must cover the actual amount of the accommodation costs, which are too high in the abstract - even if those entitled to benefits do not provide evidence of sufficient search activity.
Source: socialcourtsability.de
3.2 - SG Karlsruhe, judgment of August 30, 2017 - S 11 AS 222/17 (contrary to the decision of the SG Leipzig of September 9, 2016 - S 22 AS 2098/16 ER)
Reduction in unemployment benefit II - Failure to report - Requirements for information on the legal consequences
Guiding principle (editor)
There is no need to be instructed about the regulation of Section 309 Paragraph 3 Sentence 2 SGB III.
Source: www.socialcourt-karlsruhe.de
Legal tip:
Likewise SG Munich, decision by. July 12, 2017 – S 40 AS 1532/17 ER
3.3 – Reutlingen Social Court, decision v. September 29, 2017 – S 7 AS 2249/17 ER – legally binding
A decision on the granting of additional benefits that is missing from the sanction notice despite the existence of the requirements of Section 31a Paragraph 3 Sentence 2 SGB II makes the notice unlawful.
The regulation in Section 31a Paragraph 3 SGB II can only apply to the person whose benefits are reduced due to a sanction/breach of duty and then by more than 30% - the SG Reutlingen believes incorrectly
According to the legal provisions, the accumulation of sanctions is personal, but also cross-person.
Guiding principle (editor)
1. The meaning of the provision of Section 31a Paragraph 3 Sentence 2 SGB II (namely to protect underage children from redeployments at their expense due to sanctions that have occurred) as well as the fundamental right to guarantee a humane minimum subsistence level, which is determined by the standard requirements (cf. Federal Constitutional Court, judgment of February 9, 2010 - 1 BvL 1/09 -), requires an analogous application of the regulation in order to prevent an unconstitutional underfunding of the needs of minor children.
2. It cannot make any difference whether a single member of a community of need whose household includes underage children has to bear a penalty of more than 30% or whether the simultaneous burden on several members of the community of need results in the total exceeding the 30%. limit results. In both cases there is a risk that underage children will be unduly burdened by the sanction.
Source: socialcourtsability.de
Note:
S.a.
In addition, the guiding principle from Juris: Sanction of 30%, community of need with underage children, accumulation of sanctions for several members of the community of need, sanction during ongoing monthly offsetting.
Guiding principle (Juris)
Section 31a Paragraph 3 Sentence 2 SGBII is to be applied accordingly - in a constitutionally compliant interpretation - if there are underage children in the household and the accumulation of simultaneous sanctions from various members of the community of need results in a reduction in unemployment benefit II of more than 30 percent . In this case, the basic security provider must provide additional services. Otherwise there is a risk of an unconstitutional under-coverage of the needs of the underage children due to the reallocation of funds within the community of needs. This applies all the more if the community of needs is simultaneously burdened by a monthly offset against the current entitlement to benefits. The provider must provide additional services at the same time as the reduction notice is issued. If he fails to do this, the reduction notice is unlawful.
3.4 – Osnabrück Social Court, judgment of April 26, 2017 – S 24 AS 916/15
Basic security for job seekers - transfer of tasks by an option municipality to an institution with its own legal personality
There is no failure to report within the meaning of Section 32 SGB II because there was no request from the responsible institution to report to them.
Guiding principle (Juris)
An option municipality according to § 6aSGBII violates the principle of consistency of the legal system as a barrier to the exercise of competence if it allows its sovereign tasks to be carried out by administrative units that are independent under two legal regulations. This contradicts the uniform principle envisaged by the legislature for option municipalities (affiliation with SG Osnabrück from June 28, 2016 - S 31 AS 440/12=jurisRdNr27) (Rn. 12)
Source: socialcourtsability.de
3.5 - SG Aurich, judgment of October 18, 2016 - S 55 AS 693/15
In the event of an interruption and a subsequent new benefit case, a person in need of help must be treated in the same way as a person submitting an initial application.
Guiding principle (Juris)
If the receipt of benefits is interrupted due to employment that meets the needs of at least more than 6 months, a new benefit case exists. If the accommodation costs were clearly financed in full during the interruption, Section 22 Paragraph 1 Sentence 3 SGB II is now applicable. In order to reduce the approved costs to the so-called reasonable level, a new request for cost reductions is then required.
Source: socialcourtsability.de
4. Decisions of the State Social Court on social assistance (SGB XII)
4.1 – LSG Munich, judgment by September 28, 2017 – L 8 SO 219/15
Unsuccessful appeal against transfer of a gift repayment claim
Chains of standards:
SGB X § 20, § 24, § 31, § 33 paragraph
1
SGB
Guiding principles:
1. In the context of a decision according to Section 93 Paragraph 1 SGB XII, the exercise of discretion is not restricted in the sense of an intended discretion. The principle of subordination of social assistance must be taken into account as an important criterion when exercising discretion. (No. 38)
2. A failure to hear the creditor of the transferred claim in accordance with Section 24 SGB
(Rn. 28) 3. In the case of a transfer notification (§ 93 SGB XII), the existence of the claim according to hM in case and lit. is not a prerequisite for the legality of the transfer notification.
The transfer is only excluded and therefore unlawful if the existence of the transferred claim is obviously excluded under substantive law and the transfer is therefore clearly meaningless (so-called negative evidence). (Rn. 33) (editorial principle) Source: www.gesetze-bayern.de
5. Decisions of the social courts on child allowances
5.1 – Osnabrück Social Court, judgment of November 23, 2016 – S 27 BK 15/16 – legally binding
Matters according to Section 6a BKGG
Guiding principle (Juris)
Child allowance is not a family benefit within the meaning of Regulation (EC) No. 883/2004, but a special non-contributory benefit.
Source: socialcourtsability.de
6. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
6.1 - No child benefit if unemployment benefit II and the other parent is employed in another EU country
The BFH has decided that there is no entitlement to child benefit in Germany if the parent living in the country only receives unemployment benefit II, but not unemployment benefit I, and the other parent is employed in another EU country and receives child benefit there.
In addition, the BFH has decided that the decisions of foreign authorities have a binding effect on the family funds and the tax courts when examining whether a foreign benefit comparable to child benefit is granted for the child.
BFH, July 26, 2017 – III R 18/16: dejure.org
6.2 - Unfair regulation: When social commitment is punished - Exactly, MDR on October 25th, 2017
When social commitment is punished
Among others with Attorney Dirk Urlaub in Leipzig.
Video: www.mdr.de
Unfair regulation: When social commitment is punished
A social welfare recipient is only allowed to keep a third of her pocket money for the federal voluntary service - in contrast to her colleagues who receive Hartz IV. It's not an isolated case. The reason: an instruction from the Federal Ministry of Social Affairs.
further: www.mdr.de
Note:
Courts have already ruled on
worse status by law? It doesn't work that way, say some courts. In March, for example, the State Social Court of North Rhine-Westphalia in Essen made a final decision on the lawsuit brought by a social welfare recipient: The plaintiff can keep all of the pocket money from voluntary service.
State Social Court of North Rhine-Westphalia, judgment of
March 23, 2017 - L 9 SO 538/16 - The appeal is admitted on the question of whether the pocket money earned as part of the federal voluntary service (here in the amount of EUR 200.00) was to be counted as income.
Guiding principle (editor)
The hardship clause of Section 82 Paragraph 3 Sentence 3 SGB XII applies to pocket money earned as part of the federal voluntary service. Section 82, Paragraph 3, Sentence 3 of the SGB
6.3 - On the reclaim of ALG II if all notices are not named in the cancellation and reimbursement notice, a contribution from attorney Helge Hildebrandt, Kiel - discussion on BSG, judgment of October 27, 2017 - B 14 AS 9/17 R
further: socialberatung-kiel.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
