1. Decisions of the state social courts on basic security for job seekers (SGB II)
1.1 - State Social Court of Lower Saxony-Bremen, judgment of December 11, 2017 - L 11 AS 349/17 - appeal permitted
LSG Niedersachsen-Bremen judges that further school supplies must be taken over by the JC.
Guiding principle (Juris)
1. The costs for purchasing a calculator are covered by the flat rate for school supplies in Section 28 Paragraph 3 SGB II and can therefore not be claimed as a special, unavoidable need within the meaning of Section 21 Paragraph 6 SGB II. The amount of the school supplies allowance (a total of €100 per year) is currently not legally objectionable.
2. Purchase costs for school books are not included in the school supplies allowance of Section 28 Paragraph 3 SGB II but are taken into account when determining standard requirements (in the “Books and Brochures” item of the EVS 2008/2013, cf. Section 6 RBEG 2011 or Section 6 RBEG).
3. If the purchase costs for school books (here: necessary school books worth €135.65 for the 11th grade of a vocational high school in Lower Saxony) are not covered in another way (e.g. through the freedom of learning materials), the standard requirement covers these costs obviously not.
4. Costs for school books, to the extent that they are not actually covered by the school authority or other state bodies, are a need to be met through services in accordance with SGB II, because with SGB II the federal legislature must ensure the entire humane subsistence level including the costs of school attendance ( BVerfG, judgment of February 9, 2010 - 1 BvL 1/09 et al - Rn 181 f, 197; contrary to BSG, judgment of September 10, 2013 - B 4 AS 12/13 R - Rn 27).
5. Textbook costs are a special, but not an ongoing need within the meaning of Section 21 Paragraph 6 SGB II (see BSG, judgment of August 19, 2010 - B 14 AS 47/09 R - Rn 16).
6. It is an unplanned gap in the regulations that no adequate benefits are provided for textbook costs not covered by the freedom of learning materials in the overall structure of SGB II. This unplanned regulatory gap must be closed by analogous application of Section 21 Paragraph 6 SGB II, provided that the need cannot be denied in the individual case
Source: www.rechtsprachung.niedersachsen.de
1.2 – State Social Court of Saxony-Anhalt, judgment of December 7, 2016 – L 5 AS 461/14
Guiding principle (Juris)
1. A student exchange lasting several weeks with an Australian school - with a return visit - is equivalent to a school trip lasting several days in Saxony-Anhalt. Insofar as it recognizes school events lasting several days as educationally useful, Saxony-Anhalt school law does not systematically differentiate between “school trips” and other events.
2. The amount of expenditure for the student exchange does not mean that the federal legal framework could be assumed to be exceeded.
3. The student's income (maintenance and child benefit) must be used to finance expenses.
Source: socialcourtsability.de
1.3 – State Social Court of Saxony-Anhalt, judgment of November 21, 2017 – L 5 AS 628/16 – legally binding
Guiding principle (Juris)
1. An action to establish the illegality of the rejected promise to move is inadmissible if the move to an apartment other than the one requested has already taken place.
2. There is no legitimate interest in the determination required in accordance with Section 131 Paragraph 1 Sentence 3 SGG for a continued declaratory action. There is no risk of a recurrence if the rejection decision was based on the specific circumstances of the individual case and there are no indications that a comparable situation could arise again.
3. The cost decision was based on Section 193 Paragraph 1 SGG. Reimbursement of costs according to 63 SGB X can only be made in so-called isolated preliminary proceedings. If the objection procedure is followed by legal proceedings, the costs decision contained in the objection notice will be resolved. The costs of the preliminary proceedings will then be decided as part of the costs decision in accordance with Section 193 Paragraph 1 SGG.
Source: socialcourtsability.de
1.4 – State Social Court of Saxony-Anhalt, decision of.
08/24/2016 - L 2 AS 449/16 B ER - legally binding Guiding principle (Juris)
1. The exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 SGB II in the version applicable until December 28, 2016 does not cover the children of a national who are continuing their education of a member state of the European Union who is or has been employed as an employee in the Federal Republic of Germany, nor the parent who actually has parental responsibility for these children. For these people there is a different right of residence than that for looking for work from Art 10 Regulation (EU) No 492/2011 (connection to BSG, judgment of December 3, 2015, B 4 AS 43/15 R).
2. According to the circumstances of the individual case, the professional separation of a single parent employee from their minor children during the working days of the week does not prevent this person from seriously pursuing gainful employment at the place of work that gives rise to employee status.
Source: socialcourtsability.de
1.5 – Berlin-Brandenburg State Social Court, judgment of November 30, 2017 – L 31 AS 2400/16
Benefit in kind – wages – free meals – payment of wages in kind
Regarding the question of whether income from an employment relationship, which is generally to be taken into account in accordance with Section 11 SGB II, may be disregarded in individual cases because part of the remuneration was not paid out in money, but in food, which is undoubtedly also the subject of meeting needs within the framework the needs of Section 20 SGB II.
Income that was paid out by the employer in kind that has a market value is creditable income - Section 2 Paragraph 5 Alg II-V only applies to free meals, i.e. meals that are provided to the employee free of charge by the employer.
Meals provided by the employer – in this case dinner – are countable income.
Guiding principle (editor)
1. There is no reason not to take income from an employment relationship into account simply because it was paid out in kind.
2. Section 11 Paragraph 1 Sentence 1 SGB II clearly speaks of income in money or monetary value, although it is not doubtful that what is meant is payments in kind that have a market value. This is unquestionable, for example, when handing over a portion of beer, wine or other foodstuffs. However, a prepared dinner in a restaurant also has a market value, as any visitor can easily see from the menu. The fact that the contractual agreement was not particularly advantageous for the plaintiff does not prevent the income from being taken into account. There is no apparent principle that only allows income earned through business activities to be taken into account.
3. A limit to the possible offsetting under basic security law only arises if the value of the food received is significantly below the agreed value, because then the inflow of corresponding funds must be denied. Such a case scenario is not apparent.
4. The application of Section 2 Paragraph 5 Alg II-V therefore presupposes that the food was provided free of charge. This requirement is not met because the plaintiff had to buy the meal with 90 euros of his salary.
Source: socialcourtsability.de
Note:
Berlin Social Court, judgment of March 23, 2015 - S 175 AS 15482/14 - legally binding
(Basic security for job seekers - income consideration and calculation - meals provided by the employer - inadmissibility of reducing the flat-rate standard requirement - ineffectiveness of Section 2 Paragraph 5 AlgIIV 2008 - no authorization cover - violation of the right to self-determination)
Guiding Principle (Juris)
1. It is incompatible with the generalization idea of standard requirements to count meals provided or actually consumed by the employer as income. In particular, Section 2 Paragraph 5 Alg 2-V is incompatible with higher-ranking law.
2. Even assuming that Section 2 Paragraph 5 Alg 2-V were effective, the actual consumption of the food would have to be taken into account for reasons of the right of self-determination of the individual beneficiaries. The burden of proof should therefore lie with the service provider.
2. Decisions of the social courts on basic security for job seekers (SGB II)
2.1 – Duisburg Social Court, court decision v. January 2, 2018 – S 49 AS 3349/17
Guiding principle (editor)
1. § 41a SGB II also applies to periods before August 2016 (SG Augsburg, judgment of July 3, 2017 - S 8 AS 400/17; Grote-Seifert, in: Schlegel/Voelzke, jurisPK- SGB II, 4th edition 2015, § 80, Rn. 10; unclear: Harig, in: BeckOK Sozialrecht, Rolfs/Giesen/Kreikebohm/Udsching, 46th edition, as of September 1, 2017, § 80 SGB II, Rn. 3; aA: SG Berlin, judgment of September 25, 2017 - S 179 AS 6737/17).
2. If income from self-employment is to be checked, a period of two months is appropriate for the final decision (SG Augsburg, judgment of July 3, 2017 - S 8 AS 400/17).
3. Even for approval sections that ended before Section 41a SGB II came into force, information about the legal consequences now regulated in Section 41a SGB II is required.
4. Since the legal consequences of Section 41a Paragraph 3 SGB II, if correctly understood, go much further than Sections 66 et seq. SGB I, the reference must in particular require that the basic security provider clearly points out the risk of the final loss of entitlement, which is usually the case should require a layman's explanation of the legal text along with a reference to the economic consequences (cf. overall: SG Berlin, judgment of September 25, 2017 - S 179 AS 6737/17; Kallert, in: Gagel, SGB II / SGB III, 67. Supplementary delivery September 2017, § 41a SGB II, Rn. 88).
5. Later legal protection options are only available to a limited extent; This applies in particular to objection, complaint or review procedures (Kallert, in: Gagel, SGB II / SGB III, 67th supplementary delivery September 2017, § 41a SGB II, Rn. 87 f.; see also: Merten, in: BeckOK Social Law , Rolfs/Giesen/Kreikebohm/Udsching, 46th edition, as of September 1st, 2017, § 41a SGB II, Rns. 23, 28; aA: SG Berlin, judgment of September 25th, 2017 - S 179 AS 6737/17) .
6. Whether there are further special formal requirements for a proper letter of information in accordance with Section 41a Paragraph 3 SGB II, which are represented in case law in other contexts (e.g. applicability of Section 37 Paragraph 2 Tenth Book of the Social Security Code [SGB X] only with the signature of the clerk, not with the initials; cf. LSG North Rhine-Westphalia, decision of November 15, 2011 - L 7 AS 1382/11 B), is still unclear.
Source: socialcourtsability.de
Legal tip:
see Dortmund Social Court, judgment of December 8, 2017 – S 58 AS 2170/17
Note:
The following legal question is pending before the BSG:
Regarding the applicability of Section 41a SGB 2 to approval periods that ended before August 1, 2016.
On the existence of the requirements for a final determination of the entitlement to benefits despite the breach of the obligation to provide evidence by the beneficiary in accordance with Section 41a Paragraph 3 Sentence 3 and 4 SGB 2.
B 4 AS 39/17 R
Lower court: Berlin, S 179 AS 6737/17
2.2 – Duisburg Social Court, judgment of December 12, 2017 – S 49 AS 3784/15
Cancellation and reimbursement decision lawful - excluded from benefits due to imprisonment according to Section 7 Paragraph 4 SGB II
Guiding principle (editor)
1. The exclusion of benefits according to Section 7 Paragraph 4 SGB II applies regardless of the length of stay from the first day of stay in the facility and covers all court-ordered deprivations of liberty in all legal areas (Leopold, in: Schlegel/Voelzke, jurisPK- SGB II, 4th edition 2015, § 7, Rn. 238 ff.).
2. That the plaintiff spent six days a week in prison D.-H. worked full-time and is required to contribute to unemployment insurance for this activity, in this case this does not mean that the exceptional requirements of Section 7 Paragraph 4 Sentence 3 No. 2 SGB II would be met.
3. Because work activities involving deprivation of liberty for a prison are - regardless of the question of whether there is an obligation to have insurance in accordance with Section 26 Paragraph 1 No. 4 SGB III in unemployment insurance - not carried out on the general labor market (as a result also: LSG Berlin -Brandenburg, decision of November 7, 2006 - L 29 B 804/06 AS ER; Leopold in: Schlegel/Voelzke, jurisPK-SGB II, 4th edition 2015, § 7, Rn. 250, 252).
Source: socialcourtsability.de
2.3 – Dortmund Social Court, judgment of December 8, 2017 – S 58 AS 2170/17
Guiding principle (editor)
1. Section 41a Paragraph 3 SGB II (in the version valid since August 1st, 2016) is also applicable to approval periods that ended before August 1st, 2016 (see also Grote-Seifert in: Schle-gel /Voelzke, jurisPK-SGB II, 4th edition 2015, § 80 Rn. 10; a. A. SG Berlin, judgment of September 25, 2017, Ref. S 179 AS 6737/17 - the jump revision against this at the BSG under the Ref .B 4 AS 39/17 R pending).
2. It is not possible to take part in the legal action until Section 41a Paragraph 3 Sentence 2 SGB II does not expressly refer to Section 67 SGB I.
Source: socialcourtsability.de
3. Decisions of the state social courts on employment promotion (SGB III)
3.1 – Lower Saxony-Bremen State Social Court, judgment of December 12, 2017 - L 7 AL 36/16
Guiding principle (Juris)
1. An important reason for leaving one's job in order to move to live with one's partner can also be present in terms of blocking periods when establishing a shared household for the first time (aA BSG October 17, 2007 - B 11a/7a AL 57/06 R -).
2. A period of rest as a result of a blocking period precludes a claim to payment even if the employment agency has determined this blocking period to be valid for a later period in a final decision.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the state social courts on asylum law
4.1 – Schleswig-Holstein State Social Court, decision v. November 24, 2017 – L 9 AY 156/17 B ER – legally binding
Disputes under the Asylum Seekers Benefits Act
Guiding principle (Juris)
On the exclusion of so-called analogue benefits according to Section 2 Paragraph 1 AsylbLG in conjunction with Sections 27 ff. SGB XII during training that is essentially eligible for funding (here negative).
Source: socialcourtsability.de
Legal tip:
See Hamburg Social Court, decision of September 7, 2016 - S 28 AY 56/16 ER
5. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
5.1 - Social law information 2018 by Bernd Eckhardt
There you will find three very interesting decisions from the Federal Social Court from December 2017. What the decisions have in common is that they deal with the guarantee of the subsistence minimum under social welfare law. The constitutionally guaranteed obligation to provide guarantees gives the legislature a certain amount of freedom, but it binds them to systematically determine existential needs. The same applies to the social courts if the legislature only provides vague requirements.
The first decision discussed deals with the amount of pocket money for needy prisoners on remand, the second with the amount of the hot water allowance in SGB II, and the third with determining appropriate accommodation costs in SGB II.
The decisions are currently only available as a press release. If the reasons for the judgment reveal further or contrary perspectives, I will return to them in later editions.
Source: www.socialrecht-justament.de
5.2 – SZ: When the fear of deportation drives you to suicide
On January 1st, a refugee jumped out of the window of a shared accommodation.
It is not an isolated case: more and more Afghan refugees are taking their lives in Bavaria out of fear of deportation. The Bavarian Interior Ministry blames groups like the Refugee Council for the unrest among Afghans.
further: www.sueddeutsche.de
5.3 - The city of Kiel's new rent caps are currently not applicable, a contribution from attorney Helge Hildebrandt.
In a decision today, the Kiel Social Court decided that the new rent caps (MOG) of the city of Kiel are used to determine the "appropriateness" of the accommodation costs of recipients in terms of basic security law of benefits under SGB II (Hartz IV) and SGB “conclusive concept” in the sense of the case law of the BSG (SG Kiel, decision of January 11, 2018, S 31 AS 1/18 ER). The city of Kiel's supposedly “conclusive concept” has not yet been published and has not been disclosed to the court.
further: Sozialberatung-kiel.de
5.4 - Flood of lawsuits against Hartz IV job centers made thousands of mistakes when issuing notices
In around 40 percent of the cases, the courts ruled in favor of Hartz IV recipients. More than 180,000 lawsuits are still pending.
Many Hartz IV notices are grossly incorrect or inadequately prepared and documented. The job centers therefore withdrew 226,215 notices last year and had to accept defeat or give in to 46,395 lawsuits brought by support recipients in court.
further: www.bz-berlin.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
