1. Decisions of the Federal Social Court of 12 October 2017 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 12.10.2017 – B 4 AS 19/16 R
Basic income support for job seekers – consideration of assets – capital life insurance – obvious uneconomical use – particular hardship – savings from standard benefits
Principle (Editor):
The realization of the life insurance policy, the value of which derives from "unnecessary assistance payments", does not constitute a particular hardship for the plaintiff.
Source: juris.bundessocialgericht.de
2. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
2.1 – State Social Court of Saxony-Anhalt, Judgment of 28 September 2017 – L 2 AS 695/16 – Appeal pending before the Federal Social Court – B 4 AS 43/17 R
On the question of how the entry into force of the limitation of liability pursuant to Section 1629a of the German Civil Code (BGB) after the issuance of the objection decision affects pending legal proceedings.
Reimbursement of SGB II benefits – Limitation of liability for minors
Principle (Juris)
1. The limitation of liability for minors pursuant to Section 1629a of the German Civil Code (BGB) applies accordingly in the German Social Code, Book II (SGB II). It must already be taken into account in the proceedings concerning an action for annulment against a reimbursement order (see Federal Social Court (BSG), judgment of July 7, 2011 – B 14 AS 153/10 R = BSGE 108, 289 = SozR 4-4200 § 38 No. 2; judgment of November 18, 2014 – B 4 AS 12/14 R = SozR 4-1300 § 50 No. 5).
2. This also applies if the person reaches the age of majority only after the decision on the objection has been issued, during the ongoing legal proceedings (contra: LSG Berlin-Brandenburg, judgment of 19 April 2013 – L 26 AS 1379/10).
3. When determining the existing assets to be taken into account, items that are exempt from seizure pursuant to Section 811 of the Code of Civil Procedure must be disregarded.
Source: socialcourtsability.de
2.2 – Schleswig-Holstein Higher Social Court, decision of 18 July 2016 – L 6 AS 114/16 B ER
The establishment of a general reporting obligation cannot be the subject of an integration agreement pursuant to Section 15 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), and therefore also cannot be the subject of an administrative act replacing the integration agreement pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II).
Principle (Juris)
1. Reporting obligations that do not differ in content from the general reporting obligation under Section 59 SGB II cannot be the subject of an integration agreement.
2. If such regulations are made in an administrative act replacing the integration agreement, they are detrimental to the addressee simply because the violation of obligations arising from the integration agreement or an administrative act replacing it entails more severe sanctions than the violation of the general reporting obligation.
Source: Juris
2.3 – North Rhine-Westphalia State Social Court, decision of 19 December 2017 – L 2 AS 1900/17 B – legally binding
Despite criticism from various welfare associations, the Federal Constitutional Court has deemed the determination of the standard rates to be constitutional (see decision of 23 July 2014 – 1 BvL 10/12). Standard rate 2017
Guiding principle (Editor)
1. The setting of the standard benefit rates for 2017 complies with the constitutional requirements.
Summary:
The Federal Constitutional Court consistently holds that the legislature has discretion in determining the amount and type of benefits to ensure a dignified minimum standard of living (see Federal Constitutional Court, decision of July 27, 2016 – 1 BvR 371/11). This discretion means that constitutional review of the level of social benefits to ensure a dignified existence is limited to examining whether the benefits are manifestly insufficient (Federal Constitutional Court, decision of July 27, 2016 – 1 BvR 371/11).
Social benefits are considered manifestly inadequate only if it is obvious that, in their total amount, they cannot possibly guarantee those in need in Germany a life that can be considered physically, socially, and culturally dignified (Federal Constitutional Court, decision of July 27, 2016 – 1 BvR 371/11). Beyond this evidentiary test, the court merely examines whether the benefits can be justified in each case based on reliable figures and sound calculation methods (Federal Constitutional Court, decision of July 27, 2016 – 1 BvR 371/11). Despite criticism from various welfare associations, the Federal Constitutional Court has, in this context, deemed the determination of the standard benefit rates constitutional (see decision of July 23, 2014 – 1 BvL 10/12)
Based on this principle, the determination of the standard benefit rates currently calculated for 2017 is also not objectionable under constitutional law (see also the decisions of the Higher Social Court of North Rhine-Westphalia of October 5, 2017 – L 12 AS 1595/17 B; the Higher Social Court of Bavaria of August 23, 2017 – L 11 AS 529/17 NZB; and the Higher Social Court of Lower Saxony/Bremen of March 7, 2017 – L 13 AS 336/16 B). There is no concrete evidence of a clear shortfall in the subsistence minimum. The calculation method used also takes into account the requirements set out by the Federal Constitutional Court in its decision of July 23, 2014.
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, Judgment of 30 November 2017 – L 31 AS 1431/16 ZVW
EU citizens – European Social Security Agreement (ESA) – permanent residence – departure – human dignity
Principle (Juris)
1. A person who is indisputably capable of working is excluded from social benefits under the German Social Code, Book XII (SGB XII).
2. EU citizens who are capable of working are not entitled to social assistance benefits under the German Social Code, Book XII (SGB XII), in conjunction with the European Convention on Social and Cultural Rights (ECCR), as this does not establish an entitlement to social benefits but rather an entitlement to equal treatment. German citizens capable of working are not entitled to benefits under the SGB XII.
3. It is also reasonable, from the perspective of human dignity under Article 1 Paragraph 1 of the Basic Law, to expect an EU foreigner who can only invoke a right to seek employment for their stay, which does not entail any social benefits, to leave the country.
4. The protection of human dignity cannot be interpreted as meaning that an EU foreigner is free to choose their status of residence, with the consequence that this status must be supported by social benefits.
5. The Senate follows the jurisprudence of the Federal Administrative Court (judgment of 26.09.1991, SC 61/44, para. 15 cited according to juris), according to which it is permissible under social welfare law to induce a foreigner who is not forced to leave to leave the country by restricting social benefits.
Source: socialcourtsability.de
2.5 – LSG Munich, Judgment of 14.12.2017 – L 7 AS 466/1
On the lack of conclusiveness of a rent index relevant to basic income support due to an insufficient data basis
Principle (Juris)
1. On the rent ceilings and the requirements for the realistic determination of the abstractly reasonable accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II in the city of Augsburg in the period September 2015 to July 2017 (Paragraphs 38 – 47)
2. If the data underlying the rent index relevant for basic income support overwhelmingly concern tenancies with only a few housing associations, and it is not comprehensible that these providers control the entire local rental housing stock (in the lower rent level) or essentially cover the rental supply (at the determined reasonable rent limit), then a coherent concept is lacking. (Paragraphs 41–43) (Editorial note)
3. If the underlying concept for the update is already flawed, the subsequent manner of its update is irrelevant if the circumstances giving rise to the lack of coherence are not corrected by the update. (Paragraph 50) (Editorial note)
Source: www.gesetze-bayern.de
2.6 – LSG Munich, Judgment of 14.12.2017 – L 7 AS 408/15
On the lack of conclusiveness of a rent index relevant to basic income support due to an insufficient data basis
Principle (Juris)
1. On the rent ceilings and the requirements for the realistic determination of the abstractly reasonable accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in the city of Augsburg during the period from November 2013 to August 2015. (Paragraphs 40-49)
2. If the data underlying the rent index relevant for basic income support overwhelmingly concern tenancies with only a few housing associations, and it is not comprehensible that these providers control the entire local rental housing stock (in the lower rent level) or essentially cover the rental supply (at the determined reasonable rent limit), then a coherent concept is lacking. (Paragraphs 43–45) (Editorial note)
Source: www.gesetze-bayern.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Speyer, decision of 29.12.2017 – S 16 AS 1466/17 ER
Unconstitutionality of Section 22 Paragraph 1 Sentence 1 Half-Sentence 2 of the German Social Code, Book II (SGB II)
Principle (Juris):
Section 22 Paragraph 1 Sentence 1 Clause 2 of the German Social Code, Book II (SGB II) is unconstitutional. The provision violates the fundamental right to a guaranteed minimum standard of living that ensures human dignity, as enshrined in Article 1 Paragraph 1 of the German Basic Law (protection of human dignity) in conjunction with Article 20 Paragraph 1 of the German Basic Law (principle of the social state). By limiting the accommodation costs to be considered in the needs assessment to the "reasonable" expenses in Section 22 Paragraph 1 Sentence 1 Clause 2 of the SGB II, the legislature violates the constitutional requirement to enact sufficiently precise regulations itself that are essential for realizing the fundamental right to a guaranteed minimum standard of living that ensures human dignity (following the decisions of the Social Court of Mainz of December 12, 2014 – S 3 AS 130/14 and S 3 AS 370/14).
The Federal Constitutional Court (BVerfG) has not yet ruled on the constitutionality of Section 22 Paragraph 1 Sentence 1 Half-Sentence 2 of the German Social Code, Book II (SGB II). In its decision of October 6, 2017 (1 BvL 2/15 and 1 BvL 5/15), the Federal Constitutional Court merely dismissed the referral decisions of the Social Court of Mainz of December 12, 2014 (S 3 AS 130/14 and S 3 AS 370/14) as inadmissible, since, in the opinion of the Federal Constitutional Court, they did not fully meet the requirements for substantiation under Section 80 Paragraph 2 Sentence 1 of the Federal Constitutional Court Act (BVerfG, Decision of October 6, 2017 – 1 BvL 2/15 –, para. 13). By its decision of October 10, 2017 (1 BvR 617/14), the Second Chamber of the First Senate of the Federal Constitutional Court declined to accept the constitutional complaint underlying the proceedings for adjudication. Insofar as the Chamber nevertheless states in this decision that it considers the regulation to be constitutional, its reasoning is unconvincing.
Specialized courts are not prevented from granting preliminary legal protection if they consider the challenged regulation to be unconstitutional, even though they cannot decide on the question of unconstitutionality themselves, but must instead obtain a decision from the Federal Constitutional Court pursuant to Article 100 Paragraph 1 of the Basic Law (see Federal Constitutional Court, decision of June 24, 1992 – 1 BvR 1028/91 –, para. 29; Social Court Speyer, decision of August 17, 2017 – S 16 AS 908/17 ER –, para. 75).
In multi-person households, expenses for accommodation and heating must be allocated as a need to the persons who actually incur the expenses, i.e., those who are actually subject to a corresponding claim. There is no legal basis for an apportionment based on the number of people in each household (following the decisions of the Social Court of Mainz, referral order of December 12, 2014 – S 3 AS 130/14 –, para. 289 et seq., and the Social Court of Speyer, decision of August 17, 2017 – S 16 AS 908/17 ER –, para. 31 et seq.; contrary to the Federal Social Court, judgment of November 23, 2006 – B 11b AS 1/06 R –, para. 28 et seq.; judgment of October 31, 2007 – B 14/11b AS 7/07 R –, para. 19).
The presumption of representation under Section 38 Paragraph 1 of the German Social Code, Book II (SGB II) does not apply in the case of notification of administrative acts to the applicant (following the ruling of the Social Court of Speyer, judgment of September 8, 2017 – S 16 AS 729/16 –, paragraphs 46 et seq.).
Source: Juris
3.2 – SG Dortmund, decision of 10.01.2018 – S 27 AS 5836717 ER
Suspensive effect – the integration administrative act is unlawful because it does not specify a period of validity – it is to remain in effect until further notice
Principle: Attorney Schulte-Bräucker, 58640 Iserlohn-Kalthof
1. The unlimited validity of an EGV leads to the invalidity of the administrative act.
2. According to the highest court rulings on Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II aF), an administrative act replacing an integration agreement is unlawful if the legally prescribed period of validity is exceeded without discretionary considerations (referring to the Federal Social Court, judgment of February 14, 2013 - B 14 AS 195/11 R).
3. Even under the new law, it can be assumed that the review period of six months, in the absence of discretionary exercise, is the maximum period for a unilaterally determined term in an integration administrative act (referring to LSG Bayern, L 16 AS 291/17 B ER).
Legal tip:
See also Social Court Karlsruhe, judgment of October 12, 2017, S 14 AS 1709/17; Social Court Berlin, decision of October 12, 2017 – S 186 AS 11916/17 ER; Social Court Cologne, judgment of June 23, 2017 – S 33 AS 691/17 and Social Court Nordhausen, decision of September 30, 2016 – S 27 AS 1695/16 ER; contra: Higher Social Court Berlin-Brandenburg, decision of November 6, 2017 – L 18 AS 2232/17 B ER
3.3 – SG Gießen, Judgment of 28.11.2017 – S 22 AS 734/16
The dismissal of an employee during the probationary period constitutes a "compelling reason" within the meaning of Section 31 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II)
A job center may not reduce unemployment benefit II if work is not reasonable for the recipient given their mental and physical capabilities.
Guiding principle (www.sozialgerichtsbarkeit.de):
The term "important reason" in Section 31 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is an indeterminate legal term. A sanction only applies if, taking into account all circumstances of the individual case and weighing their interests against the public interest, the benefit recipient can reasonably be expected to behave differently.
Source: socialcourtsability.de
4. Decisions of the State Social Court on social assistance (SGB XII)
4.1 – Hessian State Social Court, Judgment of 11 October 2017 – L 4 SO 169/16 – legally binding
Interest begins to accrue in accordance with Section 44 of the German Social Code, Book One – General Part – (SGB I) within the framework of a review application in accordance with Section 44 of the German Social Code, Book Ten – Social Administrative Procedure and Social Data Protection – (SGB X).
Guiding principle (Editor)
1. The decisive factor for the commencement of interest after the expiry of six calendar months within the meaning of Section 44 Paragraph 2 SGB I is the date of receipt of the complete application for benefits.
2. Contrary to the opinion of the Social Court, the case at hand, in which the entitlement to benefits is only determined by the social welfare agency in the so-called "preferential procedure" pursuant to Section 44 of the German Social Code, Book X (SGB X), does not provide grounds for exceptionally focusing on the review application rather than the application for benefits, as stipulated in the wording of the law (as in: Federal Social Court [BSG], Judgment of November 17, 1981 – 9 RV 26/81 –, juris para. 17 et seq.; Higher Social Court of Lower Saxony-Bremen, Judgment of April 29, 2014 – L 2 R 387/13 –, juris para. 32 et seq.; Bigge, in: Eichenhofer/Wenner, SGB I – SGB IV – SGB X, 2012, Section 44 SGB I para. 19 et seq.; Lilge, in: Lilge, SGB I, 4th ed. 2016, Section 44 para. 22). 49; Mrozynski, SGB I, 5th edition 2014, § 44 para. 13; Schütze, in: von Wulffen/Schütze, SGB X, 8th edition 2014, § 44 para. 32; Wagner, in: jurisPK-SGB I, 2nd edition, as of September 27, 2017, § 44 para. 31; Bigge, jurisPR-SozR 22/2010 note 3; specifically in social assistance law, most recently Social Court Karlsruhe, judgment of July 28, 2016 – S 3 SO 3787/15 –, para. 23, juris; contra Higher Social Court North Rhine-Westphalia, judgment of June 10, 2013 – L 20 SO 479/12 –, paras. 35 ff., juris; presumably also Higher Social Court Baden-Württemberg, judgment of July 22, 2010 – L 10 R 2516/08 –, juris; left open by BSG, judgment of August 26, 2008 – B 8 SO 26/07 R –, juris para. 24).
Source: sozialgerichtsbarkeit.de
Principle (Juris)
1. If the entitlement to monetary benefits is only established in a procedure in favor of the applicant pursuant to Section 44 SGB X, the date of the original application for benefits, and not the date of the review application, is decisive for the commencement of interest pursuant to Section 44 Paragraph 2 SGB I.
2. Regarding the question of a tacit rejection of the interest payment in the decision.
4.2 – Baden-Württemberg State Social Court, Judgment of 22 February 2017 – L 2 SO 5175/15
Principle (Juris)
§ 28 SGB X is not applicable to social assistance benefits insofar as they commence independently of application from the time the social assistance provider becomes aware of the need (§ 18 SGB XII).
Source: socialcourtsability.de
Note:
The opposing view, that Section 28 of the German Social Code, Book X (SGB X), must also apply to the German Social Code, Book XII (SGB XII), despite the principle of knowledge, because this provision is intended to compensate for legal disadvantages arising from the applicant's prior assertion of claims, is unconvincing (see Dauber in Mergler/Zink, SGB XII, as of November 2012, Section 18, marginal note 19; similarly Sartorius, Der Antrag im Sozialrecht [The Application in Social Law], ASR 6/2014, 247, 253). No further justification is provided for this view, and reference is merely made to the case law on the German Social Code, Book II (SGB II) (referring to the Federal Social Court (BSG), judgment of October 19, 2010 – B 14 AS 16/09 R). However, the benefits are not comparable in this respect because the principle of application (Section 37 SGB II) applies in the German Social Code, Book II (SGB II).
4.3 – State Social Court of Saxony-Anhalt, Judgment of 14 November 2017 – L 8 SO 15/16 – legally binding
Principle (Juris):
If a recipient of assistance terminates an inpatient long-term therapy measure, leaves the facility, subsequently rents a room in a women's shelter and lives there for a few weeks before entering an outpatient supported living arrangement, the provider responsible for this service is the one in whose area of responsibility the recipient of assistance was actually staying before entering.
Source: socialcourtsability.de
5. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – The AV-Wohnen (Housing Ordinance) regulates rent ceilings for ALG II (unemployment benefit II) and social assistance in Berlin as of January 1, 2018, a contribution by a lawyer
Matthias Göbe, Law Firm Matthias Göbe.
The revised AV-Wohnen (Implementing Regulations for the Granting of Benefits pursuant to Section 22 of the German Social Code, Book II (SGB II) and Sections 35 and 36 of the German Social Code, Book XII (SGB XII)) came into effect on January 1, 2018. This regulation governs the rents that Berlin residents receiving unemployment benefit II (ALG II) and social assistance are eligible to have covered.
There are two limits that residents must adhere to. Firstly, the gross rent (basic rent + advance payments for operating costs) and, separately, the advance payments for heating costs are limited by the authorities. These limits can be found on the website of the Senate Department for Integration and Social Affairs.
At this point, I will limit myself to presenting what I consider to be the legally problematic aspects of the AV-Wohnen (AV-Living).
The link to the rent index is currently problematic.
More information: www.anwalt.de
5.2 – LSG Celle, Judgment of 12.12.2017 – L 7 AL 36/14 (Appeal allowed): SGB III: No waiting period due to job abandonment and relocation to partner.
The Lower Saxony-Bremen State Social Court (LSG) has ruled that leaving a job to establish a non-marital cohabitation for the first time at a new place of residence does not have to trigger a waiting period for unemployment benefits.
Press release from the Lower Saxony-Bremen State Social Court dated January 22, 2018: www.landessozialgericht.niedersachsen.de
5.3 – BVerwG v. 01/25/2018 – 1 C 7.17
Jurisdiction for lifting an entry and residence ban ordered by the Federal Office
The Federal Administrative Court (BVerwG) has decided in favor of the immigration authorities in the disputed question between the federal government and the states as to which authority is materially responsible for the subsequent lifting of an entry and residence ban imposed on a foreigner by the Federal Office for Migration and Refugees.
Further information: www.juris.de
5.4 – ECJ v. 01/25/2018 – C-473/16
Homosexuality tests for asylum seekers inadmissible.
The European Court of Justice has ruled that an asylum seeker may not be subjected to a psychological test to determine his sexual orientation.
Further information: www.juris.de
5.5 – Overview: Access to SGB II and the labor market – Claudius Voigt, GGUA
In August 2017, a large number of new residence permits were introduced – all related to residence for the purpose of employment or education (ICT card, Mobile ICT card, and approximately 25 new residence permits for students, trainees, researchers, volunteers, etc.). In total, we now have around 100 different legal bases for residence under the Residence Act. To say it's difficult is, to say the least, hard to keep track of them all.
The IQ Network Lower Saxony's table "Access to SGB II and the Labor Market" provides initial guidance by listing all residence permits and outlining the corresponding access points to the labor market and SGB II benefits. While the table cannot replace a comprehensive individual assessment, it can at least provide a general overview.
You can find the table here: www.einwanderer.net
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
