1. Decision of the Federal Constitutional Court on basic security according to (SGB II)
1.1 – BVerfG of October 10, 2017 – Ref.: 1 BvR 617/14
Limitation on the assumption of reasonable housing costs is constitutional
The BVerfG has decided that the legislature does not have to provide for an entitlement to unlimited assumption of the costs of accommodation and heating when receiving unemployment benefit II.
Key considerations of the BVerfG:
1. The complaints raised in the constitutional complaint that Section 22 Paragraph 1 Sentence 1 SGB II is unconstitutional are not valid (ref.: 1 BvR 617/14).
The regulation satisfies the legislature's obligation to create a concrete legal right to fulfill the fundamental right to a humane minimum subsistence level. Art. 1 Para. 1 GG in conjunction with Art. 20 Para. 1 GG guarantees the entire humane minimum subsistence level, to ensure which the needs for accommodation and heating must also be met.
The Basic Law does not specify an exact number of entitlement to social benefits. However, the guarantee of a humane subsistence minimum must be secured by a law that contains a specific entitlement to benefits. There is no constitutional objection to the fact that the legislature has not established a right to unlimited coverage of the costs of accommodation and heating.
This need relates to a person's basic life situation. However, this does not mean that any accommodation in the event of need would have to be financed by the state and rent costs would have to be reimbursed without limit. The legislature was allowed to use the vague legal concept of adequacy to limit the assumption of costs for accommodation and heating. What is to be understood as “appropriate” here can be sufficiently determined through interpretation and, in particular, taking into account the history of its origins and the other regulations of the Social Security Code. The specific needs of those entitled to benefits must then be determined on a case-by-case basis. The specialist courts assume that the market rents in the lower price segment for comparable apartments in the place of residence of those entitled to benefits can be used to determine which costs are actually appropriate and must be borne.
2. The BVerfG determined in proceedings 1 BvL 2/15 and 1 BvL 5/15 that the SG Mainz's submissions were inadmissible. There was a lack of sufficient explanation by the referring court that and how the basis of the claim can be interpreted in order to comply with the constitutional requirements
Source: BVerfG press release No. 96/2017 v. November 14, 2017, further to the full text of the decision: www.bundesverfassungsgericht.de
Sa:
The Federal Constitutional Court and the appropriateness of the costs for accommodation and heating in the basic security system - by Prof. Dr. Stefan Sell: current-socialpolitics.blogspot.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - State Social Court of North Rhine-Westphalia, judgment of 08/31/2017 – L 19 AS 787/17 – The appeal is permitted
On the legality of repaying a rental deposit loan by monthly offsetting against the entitlement to benefits according to SGB II (here affirmative)
According to the wording of Section 42a Paragraph 2 Sentence 1 SGB II, the provision also covers rental deposit loans. There are no doubts about the constitutionality of Section 42a SGB II.
Guiding principle (editor)
1. There is no valid reason to view rental deposit loans as not covered by Section 42a Paragraph 2 SGB II (also LSG NRW, judgment of May 11, 2017 - L 6 AS 111/14, Conradis in LPK-SGB II, 5th edition 2017, § 42a Rn 1, 2; Gagel/Bender. SGB, status 6/2017el. § 42a Rn 4; Boerner in Löns/Herold-Tews, SGB II, 3rd edition 2011, § 42a Rn 2, 3; left open BSG decision of June 29, 2015 - B 4 AS 11/14 R; judgment of June 25, 2015 - B 14 AS 28/14 R; aA LSG NRW, judgment of June 29, 2017 - L 7 AS 607/17, Nguyen SGb 2017, 202). Because even if Section 42a Paragraph 2 Sentence 1 SGB II is applied word for word to rental deposit loans, there is no violation of the law and no contradiction in value in relation to other regulations.
2. The repayment according to Section 42a Paragraph 2 SGB II does not violate the principle of covering needs (aA LSG NRW, judgment of July 29, 2017 - L 7 AS 607/17; Nguyen, SGb 2017, 202).
3. To the extent that § 42a Paragraph 2 Sentence 1 SGB II, unlike § 35 SGB in Nguyen, op. cit.).
Source: socialcourtsability.de
2.2 – State Social Court of North Rhine-Westphalia, judgment of September 14, 2017 – L 19 AS 360/17
The application for basic security benefits in accordance with Section 37 SGB II is generally not tied to any form - the application can therefore also be submitted orally, by telephone or by email; a handwritten signature (Section 126 BGB) is not required.
If a basic security provider allows access to applications in accordance with Section 37 SGB II via transmission channels that are not tied to working hours, such as via fax or e-mail, access is therefore already effected when the declaration comes within its sphere of influence.
An application for ALG II made by email on the last day of the month in the late evening hours outside of the job center's working hours also applies back to the first of the month in accordance with Section 37 Paragraph 2. S, 2 SGB II.
Guiding principle (editor)
1. In order for an application to be received in accordance with Section 37 SGB II, it is sufficient that the declaration to claim benefits to secure one's livelihood comes within his sphere of influence. The time of access is not determined by when, under normal circumstances - within the scope of their period of service - its employees have the opportunity to take note of the content of an electronically submitted application.
2. The email represents an application within the meaning of Section 37 Paragraph 1 Sentence 1 SGB II. The application is deemed to have been received when the email is stored in the defendant's electronic mailbox (email server). The plaintiff has provided proof of access.
Source: socialcourtsability.de
Note:
LSG NRW, judgment September 14, 2017 - L 19 AS 360/17 - legally binding - an effective application can also be submitted by email (Aubel in jurisPK-SGB II 4th edition § 37 SGB II Rn 29.1 and 31.1).
“However, it is not necessary for the application to be received during the job center’s normal business hours. Rather, the case law of the BSG on time-bound applications in social law applies to the application according to Section 37 SGB II. According to this, the only thing that matters is access to the authority's sphere of power, because the possibility of obtaining information is not necessary here according to traffic customs (BSG of February 1, 1979 - 12 RK 33/77 - juris Rn. 11 with further references). This also applies to the application according to Section 37 SGB II. It is a necessary prerequisite for the granting and limits the retroactive provision of services. Whether and when the authority becomes aware of the application is irrelevant in this regard. An application for benefits under SGB II is therefore received at the time it reaches the job center's mail or email inbox, even if this occurs on a Friday afternoon or on a Saturday, Sunday or public holiday ( LSG North Rhine-Westphalia of September 14, 2017 – L 19 AS 360/17) in detail.”
2.3 – State Social Court of North Rhine-Westphalia, decision v. March 15, 2017 - L 12 AS 664/15 - legally binding - confirmed by BSG, decision of. August 10, 2017 – B 4 AS 149/17 B
Unemployment benefit II - Accommodation and heating - Deviation from the division of accommodation costs according to the number of people if the share of the accommodation costs of a member of the community of responsibility and responsibility is no longer due to a sanction
A deviation from the standard case of the so-called “headboard principle” in the distribution of the costs of accommodation and heating among the needs of the members of a household or community of needs is also indicated if the applicants, as partners, formed a sui generis community of responsibility and responsibility.
Even in a community of responsibility and commitment, there is no family imprisonment for Hartz IV sanctions.
Guiding principle (editor)
If a sanction by a service provider against a member of the community of needs is associated with the loss of benefits for accommodation expenses, this regularly results in a deviation from the “head part principle” and proportionately higher benefits to KdU for the other members of the community of needs if the sanctioned Member - as here - has no assets or income to pay his head portion (BSG in its decisions of August 22, 2013, B 14 AS 85/12 and of December 2, 2014, B 14 AS 50/13 R (see also : Piepenstock in Schlegel/Voelzke, jurisPK, 4th edition 2015, § 22 SGB II Rn. 77).
Source: socialcourtsability.de
2.4 – State Social Court of North Rhine-Westphalia, decision v.
November 10, 2017 - L 6 AS 1256/17 B ER - legally binding Provisional approval of benefits to secure a living in accordance with SGB II in the form of the standard requirements for Spanish applicants.
Guiding principle (editor)
1. If the requirements of Section 7 Paragraph 1 Sentence 2 No. 2 c) SGB II 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 it follows from the violation of the regulation against the requirement of equal treatment in Article 4 of Regulation (EC) 883/2004).
2. Entitlement of the school-age child of a Union citizen to basic security benefits and derived right of residence of the parent with custody.
Source: socialcourtsability.de
Legal tip as well:
LSG North Rhine-Westphalia, August 1, 2017 – L 6 AS 860/17 B ER (decision discussion published in jurisPR-SozR 21/2017 note 1).
2.5 – Thuringian State Social Court, decision v.
November 1, 2017 - L 4 AS 1225/17 B ER - legally binding basic security for job seekers - exclusion of benefits for foreigners when staying to look for work - application also in the case of parents' derived right of residence through exercise of parental responsibility for a child who is entitled to freedom of movement and attending school - constitutionality - none Eligibility for social assistance
Guiding principle (editor)
1. The right of residence of the child of a Union citizen who is or was employed in another member state to attend school, derived from Art 10 (VO) 492/2011, is not a further right of residence within the meaning of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II and therefore does not conflict with the exclusion of benefits (affiliation with LSG Rhineland-Palatinate, resolution of August 11, 2016 - L 3 AS 376/16 B ER, Hess. LSG, resolution of October 31, 2016 - L 7 AS 565/16 B ER and LSG Niedersachsen-Bremen, decision of January 15, 2016 - L 15 AS 226/16 B ER).
2. The standardized exclusion of benefits does not violate EU law, in particular the prohibition of discrimination according to Art. 4 EGV 883/2004 (contrary to LSG North Rhine-Westphalia of July 12, 2017 - L 12 AS 696/17 B and the decision of the LSG Schleswig-Holstein from February 17, 2017 – L 6 AS 11/17 B ER).
Source: socialcourtsability.de
Legal tip:
a. A. ex. LSG Schleswig-Holstein from February 17, 2017 - L 6 AS 11/17 B ER and LSG NRW, decision of. 11/10/2017 – L 6 AS 1256/17 B ER
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – SG Berlin, decision by.
11/14/2017 - S 162 AS 14273/17 ER Hartz IV: No rent surcharge for religious reasons
The SG Berlin has decided that the job center does not have to cover the full rent for an apartment that is owned by a strictly religious family, knowing the unreasonably high costs moved in order to live near the place of worship they attended.
Short version:
It is obvious and requires no further justification that the applicants' apartment is unreasonably expensive.
Recognition of the full accommodation costs is therefore not possible. In its decision of October 10, 2017 (1 BvR 617/14), the BVerfG has just made it clear that there is no state obligation to finance any accommodation in the event of need. Article 4 of the Basic Law (freedom of belief and conscience) does not force a different consideration. The protection of the applicants' realization and practice of their religious beliefs is not affected by state action. According to the case law of the BSG, it is permissible to refer those in need of help when looking for accommodation to the entire Berlin urban area.
Source: Press release from SG Berlin v. November 17, 2017: www.berlin.de
3.2 – Chemnitz Social Court, judgment of October 25, 2017 – S 35 AS 4231/15 October 25, 2017
Guiding principle (editor)
1. The payment from the loan to purchase a vehicle was not to be taken into account as business income.
2. The loan payment would only have been considered as business income if the vehicle was purchased for business reasons, which would be the case if it had been used primarily for business purposes in accordance with Section 3 Paragraph 7 Sentence 3 of the ALG-II-V ( but see on the non-consideration of income from operational loans: LSG Niedersachsen/Bremen judgment of April 23, 2012 - L 9 AS 757/11). The plaintiff has not provided any relevant evidence.
3. Since the predominantly business use of the vehicle was not proven, the payment from the loan was to be assessed as private income, which could not be counted as income due to the repayment obligation that existed from the outset (BSG judgment of June 17, 2010 - B 14 AS 46/09 R).
Source: socialcourtsability.de
Note:
See LSG NRW, judgment of September 21, 2017 - L 7 AS 1357/15 on business loans: Since there was already no business loan, the question arises as to whether business loans are to be assessed as business income in accordance with Section 3 Alg II-V aF (before the reasons for the judgment are available). Judgment of the BSG of June 17, 2010 - B 14 AS 46/09 R - LSG North Rhine-Westphalia decision of November 24, 2010 - L 19 AS 1754/10 B ER, also Geiger in LPK-SGB II, 6th edition, § 11 Rn. 80) or the regulation now following from Section 3 Paragraph 3 Alg II-V that business loans are not to be taken into account as income should have already applied before and the regulation on business loans was only included for clarification (so with convincing reasons with reference to the statements of the legislator LSG Berlin-Brandenburg judgment of June 12, 2015 - L 25 AS 3370/13; in the result the same, also with convincing reasons LSG Lower Saxony-Bremen judgment of April 23, 2012 - L 9 AS 757/11) not at.
3.3 – Karlsruhe Social Court, judgment of October 12, 2017 – S 14 AS 1709/17
The validity of an administrative act replacing the integration agreement is here unlimited
With the new version of Section 15 SGB II created on July 26, 2016, the legislature did not make any express changes with regard to the period of validity of administrative integration acts according to Section 15 Paragraph 3 Sentence 3 SGB II new version (previously: Section 15 Paragraph 1 Sentence 6 SGB II old version). . The explanatory memorandum to the law (BT-Drs. 18/8041, p. 36) does not indicate that the legislature wanted to make new regulations with regard to the integration administrative act, in particular the possibility of “unlimited” integration administrative acts.
Integration administrative act, valid for 6 months even after the new version of Section 15 Paragraph 3 Sentence 3 SGB II
Guiding principle (editor)
1. The abandonment of a fixed term of 6 months for integration agreements does not affect the sovereign determination through integration administrative acts in accordance with Section 15 Paragraph 3 Sentence 3 SGB II new version (cf. also Bavarian State Social Court, decision of June 8, 2017 - L 16 AS 291/17 B ER).
2. It can also be assumed under the new law that the review period of six months is the maximum period for a unilaterally determined term for an administrative integration act in the absence of discretion (Bavarian State Social Court, decision of June 8, 2017 - L 16 AS 291/17 B ER ).
Source: socialcourtsability.de
Legal tip also:
SG Berlin, decision of October 12, 2017 - S 186 AS 11916/17 ER; SG Cologne, judgment of June 23, 2017 - S 33 AS 691/17 and SG Nordhausen, decision of September 30, 2016 - S 27 AS 1695/16 ER
3.4 – SG Dortmund, decision by. November 9, 2017 – S 30 AS 3046/17 ER
House ban lifted in the Märkischer Kreis job center, a contribution by Ulrich Wockelmann
further: www.lokalkompass.de
4. Decisions of the state social courts on employment promotion (SGB III)
4.1 – Hamburg State Social Court, judgment of July 10, 2017 – L 2 AL 9/17
Start-up grant – eligibility requirements – ending unemployment – subjective availability
Guiding principle (editor)
There is no entitlement to a new decision on an application for a start-up grant to prepare for self-employment, because the Senate has already decided that reaching a “point of no return” (i.e. a stage of the preparatory actions from which setting up a business is only an option significant economic disadvantages can be reversed [on a comparable constellation, the Senate's judgment of September 23, 2015 - L 2 AL 57/13) requires the willingness to undertake reasonable employment requiring insurance for at least 15 hours per week under the usual conditions of the labor market in question to accept and exercise it and in this way - as follows from Section 138 Paragraph 5 Nos. 3 and 1 SGB III - excludes the assumption of availability and thus also of unemployment in accordance with Section 138 Paragraph 1 No. 3 SGB III ( Senate judgments of February 3, 2016 - L 2 AL 23/15, of June 29, 2016 - L 2 AL 27/16, and of December 7, 2016 - L 2 AL 7/16).
Source: socialcourtsability.de
5. Decisions of the state social courts on social assistance (SGB XII)
5.1 – State Social Court of North Rhine-Westphalia, decision v. October 25, 2017 – L 9 SO 413/17 B ER, L 9 SO 414/17 B – legally binding
Obligation of the social welfare provider to grant the applicant benefits in accordance with Chapter 3 by means of an interim order
Guiding Principle (Juris)
If the inability to plausibly and credibly explain the consumption of a previously existing significant financial asset is based on a progressive mental illness that has become manifest in the meantime, there is a special circumstance which, in view of the constitutional penetration of urgent legal protection related to subsistence benefits, is an obligation of the social assistance provider to grant basic security benefits despite the existence of residual doubts.
Source: socialcourtsability.de
5.2 – Hamburg State Social Court, decision v.
09/28/2017 - L 4 SO 55/17 B ER - legally binding Even if an objection has been lodged against the decision of the immigration authority and the obligation to leave cannot therefore be enforced, the mere determination of loss alone constitutes an obligation to leave.
Guiding principle (editor)
1. The existence of the obligation to leave the country already contradicts the assumption of a permanent stay within the meaning of the exception regulation of Section 23 Paragraph 3 Sentence 7 SGB XII (also LSG Nieders.-Bremen, decision of May 26, 2017 - L 15 AS 62/17 B ER for the corresponding regulation in Section 7 Paragraph 1 Sentence 4 Clause 2 SGB II). However, without the stay being consolidated, there is no reason for an exception to the exclusion of benefits.
2. The requirements for an exception to the exclusion of benefits regulated in Section 23 Paragraph 3 Sentence 7 SGB XII are not met. This exception, which applies to foreigners who have been in the federal territory for at least five years without a significant interruption, does not apply if the loss of the right to freedom of movement has been determined in accordance with Section 2 Paragraph 1 FreizügG/EU. That is the case here, the immigration authorities of the invited parties have made a loss determination for both applicants.
Source: Sozialgerichtsbarkeit.de
S. a.
Guideline (juris) 1. According to the wording of Section 23 Paragraph 3 Sentence 7 Paragraph 2 SGB 3 Sentence 1 Nos. 2 and 3 SGB XII. The legal force of the loss determination is not assumed.
2. The fact that the legal force of the loss determination cannot be important also corresponds to the system of the regulation in Section 23 Paragraph 3 SGB XII.
6. Decisions of the social courts on social assistance (SGB XII)
6.1 – Social Court Kassel, decision v. February 15, 2017 – S 11 SO 9/17 ER – legally binding
Hungarian citizens are entitled to benefits according to Chapter 3 of SGB XII.
Guiding principle (editor)
On the possible constitutional right to the continued granting of social assistance, at least in the form of interim legal protection, by those EU citizens who were already receiving social assistance without a legally permissible time limit when Section 23 SGB or have previously had a corresponding claim according to the case law of the Federal Social Court.
Source: socialcourtsability.de
Legal tip:
Likewise for Bulgarian applicants: SG Kassel, decision of. 02/21/2017 – S 12 SUN 8/17 ER
7. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
7.1 - AG Göttingen, judgment of. October 24, 2017 - 18 C 41/17 on AfD membership: Tenants have an obligation to provide information and information
Challenging the rental agreement due to fraudulent deception
Norms: § 123 BGB, § 124 BGB, § 142 BGB
Principle
1. A potential tenant does not have to reveal his or her political views to a potential landlord.
2. For a potential landlord, however, the fact that the potential tenant is a “attraction point for left-wing violence” can be a significant circumstance for the landlord that must be clarified when concluding the contract.
further: www.juraforum.de
7.2 – It is worth defending yourself against the Federal Employment Agency
Massive objections and lawsuits against decisions by the Federal Employment Agency are successful.
The answer to my written question to the federal government brought it to light: As with Hartz IV, there are also mass illegal actions by the Federal Employment Agency with regard to unemployment insurance (Social Code III). In 2016, 44.5 percent of all objections in this area of law were decided in whole or in part in favor of those affected; in 2015 the figure was 43.4 percent. The situation is not much different when it comes to lawsuits: in 2016, 34.0 percent were decided wholly or partially in favor of those affected or ended with the employment agency giving in. In 2015 it was 33.4 percent.
further: www.theeuropean.de
7.3 – Criticism of the “Hartz IV” standard benefit 2017, a contribution by Herbert Masslau
I would like to start my criticism with a banal example and just leave it like this at the beginning:
further: www.herbertmasslau.de
7.4 - No gentle gift from the job center - Dortmund beggar's Hartz IV was reduced (§§ 11 and 11 a paragraph 5 SGB II)
further: www.ruhrnachrichten.de
7.5 - Federal Social Court - press release 58/2017 from November 16, 2017
Debt and social law – even piecemeal helps in fighting poverty - The standard needs for children and young people under the age of 14 are too low
With a panel discussion with the participation of the head of the youth welfare office of the city of Kassel, Judith Osterbrink, the debt advisor Michael Weinhold and Prof. Dr. Peter Becker, presiding judge at the Federal Social Court, the 49th Judges' Week of the Federal Social Court came to an end.
Following on from the opening lecture by Prof. Dr.
Cremer, former general secretary of the German Caritas Association, who described poverty policy as a “path of small steps”, demonstrated a variety of starting points for overcoming poverty and excessive indebtedness. While Weinhold demanded that “access to debt counseling must be legally secured for all those affected and must not be limited to those receiving basic security benefits and social assistance,” Osterbrink drew attention to children and young people in families at risk of poverty. “The standard requirements for children and young people under the age of 14 are too low”. Therefore, a healthy diet cannot often be guaranteed. “An approach of 5 euros per day instead of just 3 euros per day for nutrition is necessary” to ensure a balanced diet for children too.
further: www.bsg.bund.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
