1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Berlin-Brandenburg State Social Court, decision of 08.03.2018 – L 18 AS 2312/17
For the storage of bank statements in the administrative file
Guiding principle (Editor):
The plaintiff has no right to the deletion of the data by removing the bank statements from the defendant's benefit files pursuant to Section 84 Paragraph 2 of the German Social Code, Book X (SGB X).
Principle (Editor)
1. The storage of written data carriers in the administrative file is a form of data storage pursuant to Section 67 Paragraph 6 Sentence 2 No. 1 SGB X (cf. BayLSG, Judgment of 31.03.2011, L 15 SB 80/06 and BayLSG, Decision of 14.11.2013, L 7 AS 579/13 B ER and BayLSG, Decision of 21.05.2014 – L 7 AS 347/14 B ER).
2. To fulfill the tasks of the JobCenter, merely inspecting bank statements and making a corresponding note is not sufficient, as the complete, secure and rapid availability of the data contained in the bank statements is essential for the correct and prompt execution of the tasks (see LSG Berlin-Brandenburg, decision of March 19, 2015 – L 31 AS 2974/14).
3. As long as – as in this case – the scope of the review mandate for the administration remains unclear until the conclusion of the objection proceedings, the Jobcenter is entitled to refrain from further substantive review. In this respect, the same principles apply as in the case of unspecified review requests pursuant to Section 44 of the German Social Code, Book X (see, for example, Federal Social Court [BSG], decision of June 4, 2014 – B 14 AS 335/13; see also Federal Social Court [BSG], decision of February 21, 2017 – B 4 AS 379/16 B – regarding the sufficient specificity of a deletion request).
Source: socialcourtsability.de
1.2 – Berlin-Brandenburg State Social Court, decision of 23 March 2018 – L 29 AS 428/18 B ER – legally binding.
Electricity debts – energy costs – housing and heating costs – loans – preliminary legal protection
Guiding principle (Editor):
The assumption of the electricity debts is not justified because not all reasonable self-help options have been exhausted.
Guiding principle (Editor):
Within the framework of the discretionary decision pursuant to Section 22 Paragraph 8 Sentence 1 of the German Social Code, Book II (SGB II), all self-help options, in particular a change of provider, must be exhausted (see also the decision of the Higher Social Court of North Rhine-Westphalia of December 23, 2015, L 2 AS 2028/15 B ER).
Source: socialcourtsability.de
1.3 – LSG Berlin-Brandenburg, Judgment of January 31, 2018 (Case No.: L 32 AS 1223/15):
Guiding principle Dr. Manfred Hammel
1. For employable benefit recipients (§ 7 para. 1 sentence 1 SGB II) who live in the federal capital, the entire urban area of Berlin constitutes the relevant comparison area for the adequacy test according to § 22 para. 1 sentence 1 SGB II.
2. Administrative regulations issued for the granting of benefits pursuant to Section 22 of the German Social Code, Book II (SGB II) are unsuitable for assessing reasonable housing costs (Section 22, Paragraph 1, Sentence 1 of the SGB II) if they only specify a gross rent including utilities.
3. The assessment of accommodation costs must be carried out independently of the assessment of heating costs. Anything else would mean that the determination of reasonable accommodation costs is not based on a coherent concept.
4. Qualified rent indices can serve as a basis for determining the reference rent pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). If such an index exists in accordance with Section 558d Paragraphs 1 and 3 of the German Civil Code (BGB), it is presumed that the rents specified in this rent index reflect the local comparative rent (Section 558d Paragraph 3 BGB).
5. Although a so-called simple rent index pursuant to Section 558c Paragraph 1 of the German Civil Code (BGB) does not have the presumption effect pursuant to Section 558d Paragraph 3 of the German Civil Code (BGB), it nevertheless provides an indication that the charges stated therein accurately reflect the local comparative rent.
6. However, rent index data may only be used as "raw data" in connection with the adequacy assessment to be carried out pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if this data realistically reflects market conditions during the relevant observation period ("true representation of the housing market"). If the rent index lags behind actual market developments (so-called delayed market reflection), then it no longer describes the real market conditions.
7. The entire city of Berlin presents a tight housing market, where rents have risen significantly faster in recent years than the national average.
8. A rent index must, in particular, carry the presumption that the appropriate net rent can be determined from it and that, on the other hand, there are also a sufficient number of apartments available at the abstractly appropriate price for accommodation.
9. If no conclusive concept exists for the comparison area to be determined, the Jobcenter must recognize the actual costs of accommodation (capped by the table values in Section 12 of the Housing Benefit Act) in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), whereby a "safety supplement" of 10% must be taken into account here due to the different functions of housing benefit and the benefits under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II).
1.4 – North Rhine-Westphalia State Social Court, Judgment of 25.01.208 – L 19 AS 1706/17
Guiding principle (Editor)
Due to a lack of valid values for determining an abstract limit of reasonableness, the JobCenter was not entitled to cap the expenses.
Summary of the Court:
1. According to the established case law of the Federal Social Court, when applying Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), the total rents (basic rent/operating costs/heating costs) of the old and the new apartment at the time of the move must be compared if the move was not necessary (Federal Social Court, judgments of February 17, 2016 – B 4 AS 12/15 R – SozR 4-4200 § 22 No. 88 and of April 29, 2015 – B 14 AS 6/14 R – BSGE 119, 1).
2. A cap on the recognized need for accommodation and heating at the level of the previous need may only be imposed if – insofar as this cap is a prerequisite for its application – correctly determined abstract limits of reasonableness exist for the local comparison area. The Federal Social Court refers here to correctly determined municipal limits of reasonableness for both accommodation costs and heating, as determined by the benefit provider or the local authority (Federal Social Court, judgments of February 17, 2016, loc. cit., and of April 29, 2015, loc. cit.), whereby it was aware that determining abstractly reasonable expenses for heating presents practical difficulties, but that the legislator expressly provided for this possibility in Section 22b Paragraph 1 Sentences 2 and 3 of the German Social Code, Book II (Federal Social Court, judgment of April 29, 2015, loc. cit., para. 24).
3. If there is no correctly determined abstract municipal limit of reasonableness for accommodation costs or heating expenses, then a cap on benefits pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is not possible (see Higher Social Court of Berlin-Brandenburg, judgment of 27 July 2017 – L 32 AS 116/14).
4. Regardless of whether the reasonable limit for accommodation costs used by the defendant during the period in dispute – values from the housing benefit table plus a 10% surcharge – constitutes the correctly determined reasonable limit within the meaning of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), a valid reasonable limit for heating costs is lacking for the period in question. The defendant did not determine a reasonable limit for heating costs (cf. regarding the – high – requirements in this regard: Federal Social Court (BSG), judgment of June 12, 2013).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Kassel, Judgment of 19 February 2018 – S 3 AS 236/15 – Appeal pending before Higher Social Court of Hesse L 6 AS 185/18
Guiding principle (Editor):
The concept used by the defendant to determine the appropriateness of accommodation costs in the Werra-Meißner district, final report of March 2014, does not comply with the requirements established by the Federal Social Court for setting a rent ceiling (contrary to the Social Court of Kassel of 17.03.2016 (S 8 AS 447/14) and Social Court of Kassel of 07.09.2017 (S 11 SO 169/16)).
Source: socialcourtsability.de
Note regarding the German Social Code, Book XII (SGB XII):
Social Court Kassel – Case No.: S 12 SO 112/16 of March 21, 2018 – The concept of the company Analyse & Konzepte does not constitute a conclusive concept for determining reasonable accommodation costs as required by the Federal Social Court (BSG) in its established case law.
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Baden-Württemberg State Social Court, Judgment of 07.02.208 – L 2 SO 4444/17
Guiding principle (Editor):
On the granting of additional needs pursuant to Section 30 Paragraph 1 No. 2 SGB XII on the basis of retrospective determination of the disability marker G by the social welfare office (here denied).
Guiding principle (Editor):
1. To justify the additional needs allowance, a corresponding decision must have been issued by the authority responsible under Section 69 Paragraph 4 of the German Social Code, Book IX (SGB IX), or the identification document must be presented (as now clearly stated by Adolph in Linhart/Adolph, SGB II, SGB XII, AsylbLG, as of May 2013, Section 30, marginal note 13). The identification document is now equivalent to the assessment notice, as both have the same evidentiary value. This facilitates access to benefits. It is therefore insufficient if only an application has been submitted but no decision notice or identification document has yet been issued. Retroactive granting of benefits is not possible in these cases either (Dauber in Mergler/Zink, SGB XII, 19th edition, as of September 2011, § 30 para. 12; similarly Wenzel in Fichtner/Wenzel, SGB XII, 4th edition, § 30 para. 7; Scheider in Schellhorn/Schellhorn/Hohm, SGB XII, 18th edition, § 30 para. 9; Schwengers in Kruse/Reinhard/Winkler SGB XII, 3rd edition 2012, § 30 para. 3; contra Grube in Grube/Wahrendorf SGB XII, 4th edition, § 30 para. 8, Münder in LPK SGB XII 9th edition, § 30 para. 6 with reference to Grube/Wahrendorf).
2. In its decision, the Federal Social Court (BSG) (10.11.2011 – B 8 SO 12/10 R –, para. 28) demonstrated how, in the event of a longer waiting period for the decision of the social welfare office or until the end of legal proceedings concerning the disability marker "G", the increased financial expenditure to compensate for the disability can be claimed by providing detailed proof of need, possibly pursuant to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) (in the version applicable until 31 December 2010) or Section 27a Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII) (in the version applicable from 1 January 2011), and how the minimum subsistence level can be secured.
Source: socialcourtsability.de
3.2 – Baden-Württemberg State Social Court, Judgment of 21 June 2017 – L 2 SO 4759/16
Principle (Juris)
: The "Heikos" program is not suitable for determining the amount of reasonable heating costs within the meaning of Section 35 Paragraph 1 of the German Social Code, Book XII (SGB XII), as it does not constitute an assessment oriented towards the circumstances of the individual case (following the decisions of the Higher Social Court of Baden-Württemberg of May 21, 2015 – L7 AS 980/12 –, juris para. 30; and the Higher Social Court of Lower Saxony-Bremen of April 3, 2014 – L7 AS 76.80/11 –, juris para. 72). Therefore, the German Heating Cost Index should be used to determine reasonable heating costs.
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – SG Hildesheim, decision of 15.09.2016 – S 44 SO 4014/16 ER
Social assistance – integration assistance – support for appropriate schooling – need for legal protection – initial application in court proceedings – assumption of school fees – impossibility of attending a regular school – necessity of various examinations
Principle (Juris):
Applications submitted for the first time in court proceedings do not establish a need for legal protection. Medical examinations must generally be carried out in administrative proceedings. Before claiming benefits from the social welfare agency, the scope of schooling at a regular school must be determined by the responsible authorities.
Source: www.rechtsprachung.niedersachsen.de
5. Decisions of the State Social Courts on Asylum Law
5.1 – Bavarian State Social Court, decision of 19 March 2018 – L 18 AY 7/18 B ER
Guiding principle (Editor):
In principle, a restriction of benefit entitlements under Sections 2, 3 and 6 of the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 1a of the AsylbLG requires that such a restriction of entitlements be established by an administrative act (this did happen here, but the decision was unlawful under Section 14 Paragraph 1 of the AsylbLG).
Guiding principle (Editor):
The decision was unlawful, because according to § 14 para. 1 AsylbLG, restrictions on entitlements under the Asylum Seekers' Benefits Act must be limited to six months, which did not happen here.
Source: socialcourtsability.de
Sa also:
LSG Bavaria: Necessary personal needs for refugees
Necessary personal needs for refugees:
Refugees receive subsistence benefits under the Asylum Seekers' Benefits Act (AsylbLG). During the first 15 months of their stay, these benefits are largely provided in kind in reception centers. In addition to these in-kind benefits, refugees also receive a necessary personal allowance of approximately €135 per month as a cash payment. This entitlement can be restricted in individual cases if the refugees are found to have committed offenses that would justify a restriction of entitlement under Section 1a of the AsylbLG.
The decisions:
more information at: www.lsg.bayern.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Kiel Social Court confirms new Kiel rent ceilings, an article by attorney Helge Hildebrandt
In a decision dated April 6, 2018, under file number S 31 AS 21/18 ER, the 31st Chamber of the Kiel Social Court upheld the new Kiel rent limits. According to the review, which was only possible summarily in expedited proceedings, the rent limits in effect since January 1, 2017, are based on a coherent concept in accordance with the jurisprudence of the Federal Social Court. The applicants – a single mother with her 13-year-old son – are required to search for alternative accommodation throughout the city. Given that the rent exceeds the limit of €411.00 (gross rent excluding utilities) for a two-person household by €127.41, the court deemed it reasonable to expect the son, who had just recently changed schools, to change schools again if the move necessitated it.
More information here: sozialberatung-kiel.de
6.2 – Family reunification for refugees who entered the country as minors – Case C-550/16 A and S
The ECJ has ruled that an unaccompanied minor refugee who enters the country and becomes an adult during the asylum procedure retains his right to family reunification.
Source: Press release of the ECJ No. 40/2018 of 12 April 2018: www.juris.de
Note:
The European Court of Justice (ECJ) is questioning German regulations on family reunification.
Further information: www.zeit.de
6.3 – Federal Constitutional Court: An urgent application against a reporting appointment at the employment agency without an informal attempt to reschedule can result in a negative cost decision
See Federal Constitutional Court decision of 14 March 2018 – 1 BvR 300/18: dejure.org
Press release no. 22/2018 of April 13, 2018: www.bundesverfassungsgericht.de
Anyone who immediately files an urgent application with the social court against a potentially erroneously scheduled appointment with the employment agency (in this case, the complainant was still employed at the time), without first attempting to request a postponement from the agency informally, for example by telephone, is not violated in their fundamental right under Article 3 Paragraph 1 of the Basic Law if they have to bear the costs of the urgent proceedings themselves after the matter is resolved. This was decided by the Federal Constitutional Court in its ruling of March 14, 2018. This does not constitute a violation of the prohibition of arbitrariness (Case No.: 1 BvR 300/18).
Source: rsw.beck.de
6.4 – Child marriages and polygamous marriages are no longer recognized under Hartz IV
New directive from the Federal Employment Agency: Child marriages, as well as second and third wives in polygamous marriages of Muslims, may no longer be recognized. However, those affected do not have to fear any financial disadvantages.
Read more: www.welt.de
Note:
See also Professional Instructions § 7 SGB II, para. 7.64a: Marriages of minors,
further information: harald-thome.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
