1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Lower Saxony-Bremen State Social Court, Judgment of 11 December 2017 – L 11 AS 917/16
The costs for renting a calculator necessary for school are part of the personal school equipment.
Principle (Juris)
1. The costs for renting a graphing calculator for upper secondary school are covered by the school supplies allowance under Section 28 Paragraph 3 of the German Social Code, Book II (SGB II). The amount of the school supplies allowance (a total of €100 per year) is currently legally unobjectionable.
2. Further claims for reimbursement of the costs for renting a calculator do not arise for recipients of SGB II benefits either from Section 21 Paragraph 6 SGB II or from Section 73 SGB XII.
Source: www.rechtsprachung.niedersachsen.de
(Harald Thomé's comment: The Federal Council called on the Federal Government to increase the school supplies allowance from €100 to €150 due to insufficient funding. The first coalition agreement between the CDU/CSU/FDP/SPD, which subsequently collapsed, had stipulated €180. The assertion that this allowance is beyond reproach is clearly incorrect. The Higher Social Court (LSG) has clearly overstepped its bounds here!)
1.2 – Bavarian State Social Court, decision of 12 December 2017 – L 11 AS 850/17 B ER
No additional allowance is granted under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for family visits to the father in need of care who is housed in a nursing home – costs relating to personal needs of daily life are already covered by the standard allowance under Section 20 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II)
Guiding principle (Editor):
Expenses for visits to relatives are covered by the standard allowance. Travel costs for a monthly visit to one's father in a nursing home do not generally constitute an atypical need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
1.3 – LSG Munich, Judgment of 14 November 2017 – L 11 AS 870/16
No revocation of the approval of benefits under ALG II due to assets concealed through no fault of the recipient
Principle (Juris):
1. Lack of criminal responsibility and legal capacity preclude intentional or grossly negligent conduct within the meaning of the provisions for the repeal of the German Social Code, Book X (SGB X). (Paragraph 30) (Editorial principle)
2. If an applicant for social benefits lacks the capacity to understand the facts associated with the application, this precludes the culpable misrepresentation of facts and the culpable knowledge of the illegality of the benefit award. (Paragraph 30) (Editorial note)
Source: socialcourtsability.de
1.4 – Baden-Württemberg State Social Court, decision of 19 December 2017 – L 7 AS 3405/17
Job centers (JC) are only required to cover travel expenses for doctor's visits if the travel costs are exceptionally high.
Principle (Editor):
Due to the lack of a special need, there is no entitlement to consideration of additional needs pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for travel expenses to doctors if the travel expenses do not significantly exceed the portion included in the standard allowance for transport (here, the claimed need for travel expenses is not significantly above the average need, but only by 2.81 euros).
Source: socialcourtsability.de
1.5 – State Social Court of Saxony-Anhalt, Judgment of 20 September 2017 – L 4 AS 237/16 – legally binding
Principle (Juris)
On the seriousness and legal binding nature of a lease agreement concluded between acquaintances with a minor so-called favor rent and on the assumption that a legally effective contractual payment obligation is precluded by the fact that the premises occupied by the plaintiffs are not a self-contained apartment.
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Halle (Saale), Judgment of 19.12.2017 – S 5 AS 2197/16
Unemployment benefit II – Additional needs allowance for single parents – Three-generation household
The daughter's membership in the single mother's household is not a prerequisite for receiving the additional needs allowance for single parents, because the argument that no additional needs allowance for single parents arises when a child is herself a mother of a child is not valid.
The additional needs allowance for single parents pursuant to Section 21 Paragraph 3 of the German Social Code, Book II (SGB II) shall also be granted if the minor child with whom the person entitled to benefits lives and is solely responsible for their care and upbringing has a child of their own.
Principle (Editor)
1. Entitlement to additional needs for single parents, because the plaintiff lives alone with her adult son, her still minor daughter and her daughter's son, her grandson (cf. regarding the so-called three-generation household also Federal Social Court (BSG), judgment of July 17, 2014 – B 14 AS 54/13 R –, and provides for the care and upbringing of her daughter alone and without support from third parties (cf. regarding sole responsibility for care and upbringing BSG, judgment of August 23, 2012 – B 4 AS 167/11 R; BSG, judgment of March 3, 2009 – B 4 AS 50/07 R).
2. Such an understanding of the standard and the so-called expert guidance based on it already contradict the clearly worded provision, which bases the need solely on the person of the single parent entitled to benefits. Furthermore, such an understanding is incompatible with both the legislative history and the purpose of Section 21 Paragraph 3 of the German Social Code, Book II (SGB II).
3. In this respect, the provision of Section 21 Paragraph 3 of the German Social Code, Book II (SGB II) refers solely to the special needs of single parents, which are characterized by the fact that this group of people – in the same way as other persons in need of assistance covered by Section 21 SGB II – have special life circumstances that typically give rise to an additional need (see, for example, Federal Social Court [BSG], Judgment of November 12, 2015 – B 14 AS 23/14 R). Therefore, if the care and upbringing of a child is provided solely by a person entitled to benefits under the SGB II, the flat-rate additional allowance pursuant to Section 21 Paragraph 3 SGB II must be granted, regardless of the specific nature of this caregiving effort – and also regardless of whether minor parents require no upbringing or even more so.
Source: socialcourtsability.de
Legal tip:
SG Leipzig, judgment of 18.05.2016 – S 22 AS 3350/12 – Additional needs for single parents are also possible for a person under 25 years of age if they live with a minor child and their own parent.
3. Decisions of the State Social Courts on Employment Promotion (SGB III)
3.1 – Lower Saxony-Bremen State Social Court, Judgment of 12 December 2017 – L 7/12 AL 27/16
Matters concerning the Federal Employment Agency – court costs
Principle (Juris)
1. If the Federal Employment Agency (BA) sues the widow of a social benefit recipient for a reimbursement claim that arose against the recipient during his lifetime, the children of the social benefit recipient do not necessarily have to be joined as parties (following BSG, judgment of August 23, 2013 – B 8 SO 7/12 R -, SozR 4-5910 § 92c No. 2, juris Rn. 10).
2. In light of the existing legal provisions on enforcement, there are considerable doubts as to whether the Federal Employment Agency (BA) can establish the heirship of surviving relatives and the enforceability of an estate debt by means of a "liability order." The authority to do so does not derive, in particular, from Section 57 Paragraph 2 Sentence 1 of the German Social Code, Book I (SGB I), because a claim for reimbursement does not pass to the heirs by way of special succession, at least not without concurrent social benefit claims.
3. If the authority has a choice between several joint debtors for estate liabilities (§ 421 of the German Civil Code), it is authorized, within the meaning of § 39 para. 1 sentence 1 of the German Social Code, Book I, to act at its discretion. In making its decision, it must, in particular, ascertain and consider ex officio any distribution of the estate that may have already taken place and any consumption thereof, the number of heirs, the value of the estate, the amount of the reimbursement claim, and the relationship between the value of the estate and the reimbursement claim.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the State Social Court on social assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, Decision of 18.09.2017 – L 7 SO 774/16
Principle (Juris)
On the revocation of the granting of integration assistance in the form of support in the work area of a workshop for disabled persons pursuant to Section 48 Paragraph 1 Sentence 1, Sentence 2 No. 4 SGB X, if the disabled person is not capable of working in a workshop on a long-term basis due to illness.
Source: socialcourtsability.de
4.2 – Baden-Württemberg State Social Court, decision of 22.12.2017 – L 7 SO 4253/17 ER-B
Principle (Juris)
On the limitation of claims pursuant to Section 23 Paragraph 5 SGB XII in the event of a violation of a residence requirement.
Source: socialcourtsability.de
4.3 – Baden-Württemberg State Social Court, decision of 28 March 2017 – L 7 SO 85/14
Principle (Editor):
The applicant has a claim against his daughter for the return of a gift pursuant to Section 528 of the German Civil Code (BGB), which constitutes assets within the meaning of Section 90 Paragraph 1 of the German Social Code, Book X (SGB X).
Source: socialcourtsability.de
5. Decisions of the State Social Courts on the length of proceedings
5.1 – Baden-Württemberg State Social Court, decision of 11 October 2017 – L 2 SF 248/17 EK AS
Principle (Juris)
: Only a finding of excessive length of proceedings pursuant to Section 198 Paragraph 4 Sentence 1 of the Courts Constitution Act (GVG) if the initial proceedings were of very little importance to the plaintiff concerned.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Asylum Law
6.1 – Baden-Württemberg State Social Court, decision of 06.11.2017 – L 7 AY 2691/15
Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not serve to control migration as such, but rather to ensure the lawful conduct of persons falling within the scope of the AsylbLG and thereby the lawful implementation of immigration law as a whole (see also Federal Social Court (BSG), judgment of May 12, 2017 – B 7 AY 1/16 R).
Principle (Juris)
On the abusive manipulation of the length of stay and the exclusion of analogous benefits under Section 2 Paragraph 1 AsylbLG by “going underground”.
Source: socialcourtsability.de
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Comment on: Federal Constitutional Court, First Senate, Second Chamber, Decision of 6 October 2017 – 1 BvL 2/15, Federal Constitutional Court, First Senate, Second Chamber, Decision of 6 October 2017 – 1 BvL 5/15
Author: Prof. Dr. Uwe-Dietmar Berlit, Chairman of the RiBVerwG
"Adequacy" of accommodation costs (§ 22 para. 1 sentence 1 SGB II) as a sufficiently defined legal concept
Guiding Principle
1a. If a specialized court, in the context of a judicial referral, assumes that a legal provision violates the Constitution due to its vagueness, it must demonstrate how a decision in favor of one of the possible interpretations would exceed the scope of the task of the legal authorities to clarify questions of doubt and resolve problems of interpretation using conventional legal methods. It must be evident that a sufficient concretization of the regulatory content of the provision is not possible by means of legal methods of interpretation (cf. Federal Constitutional Court, Decision of June 4, 2012 – 2 BvL 9/08 – BVerfGE 131, 88, 118 et seq.).
1b. Regarding the recognition of the legislature's possibility of using indeterminate legal terms, see BVerfG, Judgment of 22 November 2000 – 1 BvR 2307/94 – BVerfGE 102, 254, 337.
2. Here:
2a. The referring court fails to explain how the application of Sections 22a to 22c of the German Social Code, Book II (SGB II) can achieve a sufficient specification of the benefit entitlement. This does not do justice to the system established by the legislator. With these provisions, the legislator has codified the interpretation of Section 22 Paragraph 1 Sentence 1 SGB II by the Federal Social Court (BSG) (Judgment of November 7, 2006 – B 7b AS 10/06 R, para. 24; Judgment of June 16, 2015 – B 4 AS 44/14 R, para. 13), according to which the appropriateness of housing costs is to be determined in accordance with the product theory based on a coherent concept. While this certainly leaves authorities and courts some discretion, particularly with regard to the coherent concept, the interpretation of the provision at issue here is legally limited.
2b. Therefore, it would have been necessary to provide a more detailed explanation as to why this legislative decision should not be able to support a constitutionally compliant interpretation of the initial provision of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). By granting states, districts, and independent cities only the possibility of further elaboration at the statutory level in Section 22a Paragraph 1 of the SGB II, the legislator indicates that it considers the statutory provision in Section 22 of the SGB II to be sufficiently specific in light of the case law of the social courts.
Source: www.juris.de
7.2 – Schoolbooks from the Job Center: SGB II must be interpreted in accordance with the constitution
The LSG Celle-Bremen has ruled for the first time in a higher court ruling that costs for school books must be covered by the job center as additional needs benefits.
According to the State Social Court, the explanatory memorandum to the law states that books are not covered by the school supplies allowance under Section 28 Paragraph 3 of the German Social Code, Book II (SGB II), but must generally be paid for from the standard allowance. However, since this allowance only provides for approximately €3 per month for books of any kind, it covers less than a third of the necessary schoolbook costs. Furthermore, the SGB II does not provide any other adequate benefits for this. This constitutes an unintended gap in the regulations, because the legislature must guarantee the entire minimum standard of living, including the costs of attending school. This gap should be closed for one-off expenses such as schoolbooks through a constitutionally compliant interpretation of Section 21 Paragraph 6 of the SGB II, even though this provision, according to its wording, only applies to ongoing expenses.
In contrast, the costs for graphing calculators are covered by the school supplies allowance. Even in the case of a one-off peak in demand, there is no evident shortfall. This is because such a calculator does not need to be purchased anew for each school year, so the allowances are sufficient overall.
Lower court:
Social Court Lüneburg, judgment of 18 April 2017 – S 25 AS 945/16
Source: Press release of the LSG Celle-Bremen No. 1/2018 dated January 15, 2018: www.juris.de
7.3 – Note on: VG Göttingen 2nd Chamber, decision of 13 October 2017 – 2 B 712/17
Author: Frank Götsche, Judge at the Higher Regional Court
Entitlement of a child entitled to freedom of movement to maintenance advance payments
Guiding principle:
A foreigner entitled to freedom of movement belongs to the group of persons entitled to benefits under Section 1 of the UVG (German Social Security Code).
Source: www.juris.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
