1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Saarland Higher Social Court, Judgment of 09.05.2017 – L 9 AS 8/15 – Appeal pending before the Federal Social Court, Case No.: B 14 AS 15/17 R
Social law administrative procedure - Revocation of an unlawful favorable administrative act - Grossly negligent incorrect information - Basic income support for job seekers - Consideration of assets - Failure to disclose a life insurance policy - Reimbursement - Limitation of the recovery to an amount equal to the assets to be taken into account at the beginning of the benefit period after deduction of allowances
Guiding principle (Juris):
The hardship provision of Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 2 of the German Social Code, Book II (SGB II), is to be applied in the case of the withdrawal and reimbursement of basic income support benefits due to undisclosed assets in such a way that the reimbursement claim remains limited to the amount that would have resulted as assessable assets at the beginning of the benefit period after deduction of the allowances. (Paragraph 65)
B 14 AS 15/17 R
Lower court: Saarbrücken Higher Social Court, L 9 AS 8/15
Is the reimbursement claim limited to the amount that would have resulted as assessable assets at the beginning of the benefit period after deduction of the allowances when basic income support benefits are withdrawn and reimbursed due to undisclosed assets?
Legal tip:
a. A.: North Rhine-Westphalia State Social Court, judgment of June 29, 2017 – L 7 AS 395/16 – appeal pending before the Federal Social Court (BSG) under file number: B 4 AS 29/17 R and Saxony State Social Court, judgment of May 18, 2017 – L 3 AS 758/16 – appeal pending before the Federal Social Court (BSG) under file number: B 14 AS 30/17 R
1.2 – North Rhine-Westphalia State Social Court, Judgment of 22 September 2016 – L 7 AS 162/15 – Appeal pending before the Federal Social Court under file number: B 14 AS 21/17 R
Unemployment benefit II – Accommodation and heating – First move out of parents' home before the age of 25 – Moving in with partner – no obligation on the part of the basic income support provider to make a commitment – the commitment pursuant to Section 22 Paragraph 5 of the German Social Code, Book II (SGB II) is a material prerequisite for a person under 25 years of age to receive benefits for accommodation and heating
Guiding principle (Editor)
1. A move out of the parental home due to an impending marriage or to establish a civil partnership within the meaning of Section 7 Paragraph 3 No. 3 of the German Social Code, Book II (SGB II) can be considered a serious reason within the meaning of Section 22 Paragraph 5 Sentence 2 No. 3 SGB II.
2. However, the mere desire to move in with one's girlfriend is not yet a serious reason (see also LSG Saxony-Anhalt, decision of 19.09.2012 – L 5 AS 613/12 B ER).
Source: socialcourtsability.de
Note: B 14 AS 21/17 R
Lower court: LSG Essen, L 7 AS 162/15
Is the assurance pursuant to Section 22 Paragraph 5 SGB 2 also required if the move was not preceded by the conclusion of a tenancy agreement?
1.3 – Saxon State Social Court, Judgment of 0902.2017 – L 3 AS 432/14 – Appeal pending before the Federal Social Court under file number: B 14 AS 17/17 R
On the question of whether a deviation from the per capita principle is permissible in household communities if, as a result of a refusal or for any other reason, a member of the household community does not receive benefits under the German Social Code, Book II (SGB II).
Regarding the deviation from the head-share principle concerning the needs for accommodation and heating in the event of a denial of benefits under Section 66 SGB I to a member of the household (affirmed here).
Guiding principle (Editor)
1. In shared households, the per capita principle must be deviated from if, as a result of a refusal or for any other reason, a member of the shared household does not receive benefits under the German Social Code, Book II (SGB II).
2. The conditions for a deviation from the head-share principle for needs-related reasons are met here, because the plaintiff's child is not a party to the lease agreement and therefore not liable for the rent to the landlord.
Source: socialcourtsability.de
Legal tip:
Similarly, SG Berlin, judgment of 20.05.2016 – S 37 AS 14517/15 – The needs-based deviation from the head share principle also applies if the person under 25 years of age lives in a household with their parents.
Note: B 14 AS 17/17 R
Lower court: LSG Chemnitz, L 3 AS 432/14
Is the deviation from the per capita principle regarding accommodation costs justified in favor of the other members of a household receiving benefits if one member is denied benefits pursuant to Section 66 SGB 1 due to lack of cooperation?
1.4 – Bavarian State Social Court, decision of 17 October 2017 – L 11 AS 589/17
The dispute concerns the manner in which the job center contacted the plaintiff.
Legal principle (Juris):
The authority is only required to contact a representative of the benefit recipient within the framework of Section 13 of the German Social Code, Book X (SGB X). Audio and video recordings of conversations between employees of the job center and benefit recipients may only be made with the permission of the former.
Note to the Court:
There is also no legal basis for obligating the defendant to tolerate or authorize the unrestricted recording of video and audio recordings of conversations between his employees and the plaintiff. Such tolerance is precluded by the general right of personality of the employees concerned (Article 2 Paragraph 1 of the Basic Law in conjunction with Article 1 Paragraph 1 of the Basic Law) (see, in this regard, the Senate's decision regarding preliminary injunction proceedings brought by the plaintiff on March 15, 2017 – L 11 AS 89/17 B ER –), although it should be noted that the plaintiff is free to involve a representative in such conversations.
Source: socialcourtsability.de
1.5 – Bavarian State Social Court, Judgment of 17 October 2017 – L 11 AS 588/17
Regarding the reimbursement of costs for a hard (spinal disc) mattress and the certificate issued for this purpose.
Guiding principle (Editor):
The costs for acquiring a mattress are only to be covered as part of initial furnishing. The purchase of a mattress constitutes a one-time, not an ongoing, need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
1.6 – Berlin-Brandenburg State Social Court, Decision of 23 October 2017 – L 31 AS 2007/17 B ER – legally binding.
Principle (Juris):
1. With the introduction of the bridging benefit pursuant to Section 23 Paragraph 3 of the German Social Code, Book XII (SGB XII), the legislator has clarified that voluntary departure of EU citizens without a right of residence is reasonable and to be expected.
2. Employable EU foreigners are not entitled to social assistance under the German Social Code, Book XII (SGB XII), even in conjunction with the European Family Assistance Agreement (EFA), as the European Social Assistance Agreement only establishes a right to equal treatment with nationals, but not a separate entitlement to social assistance for foreigners.
Note from the Court:
Insofar as the Federal Social Court (BSG) stated in its judgment of January 20, 2016 (B 4 AS 35/15 R, paras. 41, 42, cited according to juris) that the then-valid exclusion of benefits did not apply to social benefits granted at the discretion of the authorities, this case law has been rendered invalid by the amendment to Section 23 Paragraph 3 of the German Social Code, Book XII (SGB XII) by Article 2 No. 1 of the Act of December 22, 2016, effective December 29, 2016. Even if the aforementioned judgment was intended to mean that EU citizens with de facto tolerated stay status should in any case be granted subsistence-level benefits, even if they remain in Germany contrary to the legal situation because the immigration authorities do not take coercive measures, this argument has also been rendered invalid by the amendment to the law.
Source: socialcourtsability.de
1.7 – State Social Court of Saxony-Anhalt, Judgment of 13.09.2017 – L 5 AS 1038/13 – legally binding
Principle (Juris)
1. The Salzland district with an area of 1,426.76 km² and 203,785 inhabitants is not a uniform comparison area, as it does not constitute a "homogeneous living space" within the meaning of the case law of the Federal Social Court (BSG) due to structural differences.
2. The Salzland district is to be divided into 13 comparison areas, consisting of the cities, municipalities and collective municipalities. These each form homogeneous living spaces and each has its own housing market.
3. Determining a reasonable rent is not possible by retrospectively applying a sound concept to periods prior to data collection. A calculation based on the consumer price index for all private households is not feasible.
4. If investigations by the court do not lead to a valid data basis, the housing costs shall be granted up to the amounts according to § 12 WoGG plus a safety surcharge.
Source: socialcourtsability.de
1.8 – State Social Court of Saxony-Anhalt, Judgment of 13.09.2017 – L 5 AS 8/16 – legally binding
Consideration of travel expense reimbursement by the employer as income.
Benefits that are at the agent's free disposal and where he can decide when and how to use these funds for the agreed purpose are not to be considered as reimbursement of expenses (see also: LSG for the State of North Rhine-Westphalia, judgment of November 14, 2016, L 19 AS 885/16 (26) for a gardener's flat-rate travel allowance for the removal of leaves; Saxon LSG, decision of September 20, 2016, L 7 AS 155/15 NZB (33) for a flat-rate travel allowance for the use of the courier driver's own vehicle).
Principle (Juris)
1. Travel allowance paid by the employer as a mileage allowance for the use of the employee's own vehicle in the performance of their duties (delivery driver) is income pursuant to Section 11a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). It is not a reimbursement of expenses pursuant to Section 670 of the German Civil Code (BGB), which, as a "pass-through item," would not result in an increase in value.
2. Necessary expenses related to generating income must be deducted from this amount. If the benefit recipient does not submit receipts for the actual costs (fuel receipts, repairs, etc.), the costs may be estimated at €0.10/km in accordance with Section 3 Paragraph 7 and Section 6 Paragraph 1b of the Second Book of the Social Code (SGB II). Recourse to the values of the Federal Travel Expenses Act (BRKG) (€0.30/kilometer of distance) is not permitted. The vehicle's average fuel consumption also does not provide a suitable basis for estimation.
3. Costs incurred in the month of employment will be taken into account, even if the wage payment is made in the following month.
4. Contributions to motor vehicle liability insurance are not deductible according to § 11b para. 1 no. 3 SGB II if they are not paid by the benefit recipient himself and he is not the policyholder.
Source: socialcourtsability.de
Legal tip:
cf. current ruling: LSG Berlin-Brandenburg, judgment of 14.07.2016 – L 34 AS 1901/13 (The flat-rate travel allowance paid by an employer to the person in need is not to be considered income, provided that it is covered by the actual petrol costs incurred by the person in need).
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Dessau-Roßlau Social Court, Judgment of 18 October 2017 – S 14 AS 1723/16
No flat-rate deduction of €2.85 for check payments by the job center due to the BA's work instructions – Section 42 Paragraph 3 SGB II
Guiding principle (Editor)
1. In principle, a deduction is possible with this type of payment, but not as a lump sum, rather after proof of the actual expenses.
2. Due to the lack of legal norm quality, the internal regulations of the BA have no binding effect either towards benefit recipients or towards the courts.
3. This case was not filed here and would likely be difficult for other job centers to file either; therefore, legal action is recommended.
Source: Schindler Elmenthaler Lawyers: www.rechtsanwalt-schindler.de
Legal tip:
Osnabrück Social Court, judgment of February 16, 2010, S 22 AS 1003/08 – No “account management fee” for cash withdrawals at government offices, published in ASR 2010, 212-213
Note from the Federal Employment Agency (BA): Payment of basic income support benefits: www3.arbeitsagentur.de
2.2 – Social Court Berlin, Judgment of 06.10.2017 – S 37 AS 25345/15
Basic income support for job seekers – consideration and calculation of income – household of one parent with children in shared custody arrangements – full crediting of child benefit towards the child's needs when the parent is the sole recipient – unemployment benefit II – accommodation and heating – the child's own proportionate needs – additional needs in case of single parenthood – half of the additional needs for the non-custodial parent – needs assessment according to the allegro program
For calculating benefit entitlements in a household with children who are cared for and raised in a shared custody arrangement.
Principle (Juris)
1. In the alternating residence model, children in need of assistance are entitled to their own, proportionate housing costs allowance.
2. Child benefit is to be fully credited against the needs of the child in a parent-child benefit unit if the parent receiving the child benefit does not pass it on partially to the other parent.
3. If a child over 7 and a child under 7 years of age alternately stay with one parent, the additional needs for single parenting are determined according to the formula [(12% of the standard parental needs + 36% of the standard parental needs): 2].
4. A proportional needs assessment according to the allegro program does not comply with the legal requirements for needs calculation.
Source: socialcourtsability.de
2.3 – Social Court Koblenz, Judgment of 17 October 2017 – S 14 AS 883/15
Koblenz Social Court: Sale of land to establish an entitlement to Hartz IV benefits is invalid
Summary:
A homeowner who sells her property to her legal representative in order to receive Hartz IV benefits acts immorally if she does not have the purchase price paid out to her before her retirement and demands that her rent be paid by the social welfare office.
House sold to legal representative in connection with Hartz IV lawsuit: rsw.beck.de
2.4 – Augsburg Social Court, Judgment of 20 October 2017 – S 8 AS 1071/17
Regarding family ties – Romanian daughter is entitled to ALG II (unemployment benefit II).
Legal norms:
Freedom of Movement Act/EU § 3 para. 2
; Social Code Book II § 7 para. 1 sentence 2 no. 2
Principle (Juris):
A relative (here daughter) over 21 years of age is a family member if she is supported by the father by being provided with accommodation and food.
Source: socialcourtsability.de
2.5 – Augsburg Social Court, Judgment of 13 October 2017 – S 8 AS 1021/17
No legitimate interest in bringing an action for annulment regarding a consensual integration agreement – The integration agreement also does not violate any statutory prohibition because it is valid until further notice
Principle (Editor):
1. No legitimate interest in a declaratory judgment action regarding a consensual integration agreement.
2. The integration agreement does not violate any statutory prohibition because it remains in effect until further notice. While Section 15 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), in force since August 2016, stipulates that an integration agreement should be reviewed regularly, at the latest after six months, this does not imply, as a comparison with the former Section 15 Paragraph 1 Sentence 3 of the SGB II demonstrates, that a mutually agreed integration agreement may not remain in effect for a longer period or for an initially indefinite time. Furthermore, while a maximum validity period of six months is generally assumed for the issuance of an integration agreement by administrative act (see Bavarian State Social Court, decision of June 8, 2017, L 16 AS 291/17 B ER), this does not apply in the present case. However, this is justified by the fact that the legislator did not intend to create a new regulation regarding integration administrative acts, but rather to maintain the existing limitation on their validity period.
3. Furthermore, the possibility of an integration agreement (EGV) being valid indefinitely is supported by the fact that a mutually agreed amendment is possible at any time, or, if such an amendment cannot be reached despite changed circumstances, unilateral termination is possible (see Bavarian State Social Court, decision of March 17, 2017, L 11 AS 192/17 B ER). Thus, both parties can, if deemed necessary, withdraw from an integration agreement concluded for an indefinite period by means of a unilateral declaration, thereby paving the way for a new regulation, either through a mutual agreement or an administrative act. This satisfies the purposes stipulated by basic income support law.
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Employment Promotion (SGB III)
3.1 – Hessian State Social Court, decision of 25 July 2017 – L 7 AL 16/17 – legally binding
Calculation of unemployment benefits after irrevocable release from work duties
Principle (Editor)
1. It is consistent with the established case law of the Federal Social Court (BSG), which most recently reaffirmed this in its decisions of July 8, 2009 – B 11 AL 14/08 R and April 30, 2010 – B 11 AL 160/09 B, that in the assessment period pursuant to Section 150 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), only remuneration paid on the basis of employment within the meaning of social security law can be taken into account. This does not include remuneration paid for periods after a period of leave from work. This legal question has been clarified (as expressly stated most recently by the Bavarian State Social Court, decision of July 18, 2016 – L 10 AL 133/16 NZB; Hamburg State Social Court, judgments of April 5, 2017, L 2 AL 68/16 and L 2 AL 84/16; for the whole, see also Köhler, Effects of an irrevocable exemption on unemployment benefit I, WzS 6/7 2017, pp. 171 – 173).
2. The aim of preventing a benefit level that exceeds compensation for the currently attainable wage is readily justified by the wage replacement function of unemployment benefits, and it is fundamentally unobjectionable that, although wages earned after an irrevocable release from work are subject to unemployment insurance contributions, they are not taken into account when calculating unemployment benefits – unlike when fulfilling the qualifying period. Contrary to the plaintiff's assertions, neither ordinary nor constitutional law requires strict contribution equivalence of benefits (see also Hamburg Higher Social Court, judgment of April 5, 2017, L 7 AL 84/16).
Source: socialcourtsability.de
4. Decisions of the State Social Court on social assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, Judgment of 19 October 2017 – L 7 SO 1320/17
Principle (Juris):
Assets within the meaning of Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII) can also include claims for the return of gifts pursuant to Section 528 Paragraph 1 of the German Civil Code (BGB). If the donor makes no effort to recover the gift, they cannot claim that the claim for the return of the gift does not constitute readily available funds.
Source: socialcourtsability.de
5. Decisions of the Social Courts on Social Assistance (SGB XII)
5.1 – Hamburg Social Court, Judgment of 30 May 2017 – S 28 SO 299/14
A hospital operator's claim for reimbursement due to inpatient hospital treatment – requirements for the existence and continuation of an urgent case
The asserted claim fails because, in view of the patient's insufficiently established identity, his need for assistance cannot be adequately established as a prerequisite for any potentially hypothetical entitlement to benefits for health care from the defendant under Sections 19 Paragraph 3, 23 Paragraph 1, 48 Sentence 1 of the German Social Code, Book XII (see Hamburg Social Court judgment of January 16, 2017, Case No. S 10 SO 334/12).
Guiding principle (Editor)
: 1. No claim for emergency assistance by the hospital if the patient's identity is unclear.
2. The lack of income and assets of patients, which must be examined within the framework of a claim under Section 25 of the German Social Code, Book XII (SGB XII), can generally be determined and established from an overall assessment, which must ultimately be conclusively derived from the content of all files consulted, from the patient's statements and behavior, and possibly also from further investigations carried out by the parties involved (see also the judgment of the Higher Social Court of North Rhine-Westphalia of 18 August 2016, L 9 SO 328/14).
3. The inability to prove the facts establishing the claim under Section 25 of the German Social Code, Book XII (SGB XII) is to the detriment of the emergency helper (Federal Social Court, 18 November 2014 – B 8 SO 9/13 R).
Source: socialcourtsability.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Rent ceilings in Kiel: The city must decide on new rent ceilings by January 31, 2018
See current ruling: SG Kiel, decision of November 7, 2017, S 23 SO 23/17 ER), a contribution by attorney Helge Hildebrandt, Kiel
More information: sozialberatung-kiel.de
6.2 – On standard benefits in the Hartz IV system and the at-risk-of-poverty threshold. The shortfall is growing.
Paul M. Schröder from the Bremen Institute for Labor Market Research and Youth Vocational Assistance (BIAJ) has examined the level of standard benefits, now called standard needs, in the Hartz IV system in comparison to the at-risk-of-poverty thresholds.
Read more: aktuelle-sozialpolitik.blogspot.de
6.3 – The government will pay for larger and more expensive apartments for Hartz IV recipients in Berlin starting January 1, 2018
More information: www.bz-berlin.de
6.4 – BVerwG v. November 8, 2017 – Ref.: 5 C 11.16
Scope of educational assistance for trainees living with a parent:
The Federal Administrative Court (BVerwG) has ruled on the Federal Training Assistance Act (BAföG) that trainees do not "live with their parents" within the meaning of the law and are therefore entitled to higher accommodation allowances if they take a parent into their home and this accommodation constitutes support for the parent.
Further information: www.juris.de
6.5 – Unemployed without bank accounts: Supermarkets will pay out benefits in the future – Spokesperson for the Federal Employment Agency.
No bank account of your own? Until now, unemployed people received their money at the job center. In the future, supermarket cashiers will pay it out – in a surprisingly simple procedure.
More information: www.spiegel.de and www.tag24.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
