1. Decisions of the Federal Social Court of 25 April 2018 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 25.04.2018 – B 14 AS 14/17 R
Unemployment benefit II – Adequacy of accommodation costs – Single-person household after the minor child leaves the benefit unit by covering needs with own income
To determine the reasonable costs of accommodation and heating for a parent living with (at least) one minor child who can cover their own needs, should the value for single persons or the per capita value for a household based on the number of household members be used?
Guiding principle (Editor):
When assessing the appropriateness of accommodation costs according to the standards of the German Social Code, Book II (SGB II), a group of persons is only relevant if they form a community of need within the meaning of Section 7 Paragraph 3 of the SGB II.
Guiding principle (Editor)
1. For the determination of the reasonable costs of accommodation and heating of a parent who lives with (at least) one minor child who can cover their own needs, i.e., does not form a household community with the parent according to § 7 para. 3 no. 4 SGB II, the value for single persons for a household community according to the number of household members is to be used as a basis.
2. In the case of several persons who share an apartment, the total expenses must generally be divided equally among the occupants (see BSG of 14.2.2018 – B 14 AS 17/17 R).
3. When assessing the appropriateness of expenditures, the product theory applies to the appropriate size of housing, based on the values of social housing. Within this framework, the appropriate size of housing is determined not by the number of residents, but solely by the number of members of a household receiving benefits, even if all residents belong to the same family (Federal Social Court, judgment of February 18, 2010 – B 14 AS 73/08 R).
4. There are no compelling legal grounds for an exception in the case of a single parent who lives with her minor child who can cover his needs with his own income, i.e., does not form a household with her according to § 7 para. 3 no. 4 SGB II.
Source: juris.bundessocialgericht.de
Note:
SG Kiel (decision of August 11, 2016 – S 43 AS 185/16 ER) and decision of November 30, 2016 – S 39 AS 289/16 ER) – When assessing the appropriateness of housing costs according to the standards of the German Social Code, Book II (SGB II), multiple persons are only relevant if they form a benefit unit within the meaning of Section 7 Paragraph 3 SGB II (cf. Federal Social Court, judgment of February 18, 2010 – B 14 AS 73/08 R). Due to sufficient income, one child had ceased to be part of the parental benefit unit (Section 7 Paragraph 3 No. 4 SGB II). The mother, who remains receiving SGB II benefits, now constitutes a single-person benefit unit.
See also Thomé Newsletter 16/2018 of 29.04.2018, point 3 and 38/2016 of 09.12.2016, point 2
1.2 – BSG, Judgment of 25.04.2018 – B 4 AS 19/17 R
On the necessity of supplementary, appropriate learning support – possibly also long-term – for children and adolescents with dyslexia.
Guiding principle (editor):
Children with spelling difficulties are entitled to support. Job centers must also pay for long-term learning support for children with reading and spelling difficulties.
Guiding principle (Editor)
1. That learning support pursuant to Section 28 Paragraph 5 of the German Social Code, Book II (SGB II), encompasses more than just tutoring and not just short-term measures, regardless of competence issues, follows from the interpretation of this provision in light of the judgment of the Federal Constitutional Court of 9 February 2010 (- 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – BVerfGE 125, 175), in whose implementation it was created.
2. To specify possible learning support services according to § 28 para. 5 SGB II in the case of learning difficulties, the integration assistance services that may be considered according to § 35a SGB VIII and §§ 53 ff SGB XII should also be taken into account.
Source: juris.bundessocialgericht.de
1.3 – BSG, Judgment of 25.04.2018 – B 4 AS 29/17 R
Is the basic income support provider allowed to completely revoke its benefit award notices due to undisclosed assets and demand repayment of all approved benefits if the assets available to the benefit recipient during the period in dispute would not have been able to cover the entire need during that period and therefore the amount to be repaid exceeds the available assets many times over?
Principle (Editor)
1. In the case of undisclosed assets, there is no legal basis for limiting the cancellation of benefits and reimbursement to the maximum assets that would be fictitiously used up if the assets had been lawfully disclosed.
2. However, the job center can waive part of the repayment claim upon request.
Source: juris.bundessocialgericht.de
Note:
The consideration of a "fictitious depletion of assets" is precluded both in cases of granting an application and in cases of revocation and reimbursement, as clarified by the Saxon State Social Court (Saxon State Social Court, judgment of May 18, 2017 – L 3 AS 758/16). The appeal against this decision, which was granted and filed, was withdrawn (see Federal Social Court, judgment of August 28, 2017 – B 14 AS 30/17 R).
(Karl in: Schlegel/Voelzke, jurisPK-SGB II, 4th ed. 2015, § 9, para. 42.3)
1.4 – BSG, Judgment of 25.04.2018 – B 14 AS 15/17 R
Consideration of assets – Failure to disclose a life insurance policy – Limitation of the repayment claim to the amount that would have been taken into account at the beginning of the benefit period – Hardship provision of Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 2 of the German Social Code, Book II (SGB II)
When basic income support benefits are withdrawn and reimbursed due to undisclosed assets, is the reimbursement limited to the amount that would have resulted as assessable assets at the beginning of the benefit period after deduction of allowances?
Guiding principle (Editor)
1. In the case of undisclosed assets, there is no legal basis for limiting the suspension of benefits and reimbursement to the maximum assets that would have been fictitiously used up if the assets had been lawfully disclosed (based on BSG, judgment of 25.04.2018 – B 4 AS 29/17 R).
2. However, the job center can waive part of the repayment claim upon request.
Source: juris.bundessocialgericht.de
2. Decisions of the Federal Social Court of 25 April 2018 on social assistance (SGB XII)
2.1 – Federal Social Court (BSG), Judgment of 25 April 2018 – B 8 SO 25/16 R
For the recognition of additional needs due to significant walking disability according to § 30 paragraph 1 SGB XII, does the relevant date depend on the date of presentation of the severely disabled person's identity card or a corresponding notification to the social welfare agency, or on the date specified in the notification of the fulfillment of the requirements for the disability marker "G"?
Guiding principle (Editor):
Section 30 Paragraph 1 of the German Social Code, Book XII (SGB XII) expressly requires proof of the assessment notice from the social welfare office for the commencement of the granting of the additional needs allowance.
Principle (Editor)
1. The defendant was correct in granting an additional allowance due to the disability marker "G" only from the beginning of the month in which the plaintiff submitted the assessment notice from the social welfare office as proof.
2. For, with the amendment to the law that came into effect on 7 December 2006, the legislator only intended to allow proof by submitting the assessment notice, but not to establish an entitlement to benefits for the past relating to the point in time from which the compensation for disadvantages was recognized by the social welfare office.
Source: juris.bundessocialgericht.de
Legal tip:
See also LSG Baden-Württemberg, judgment of 07.02.2008 – L 2 SO 4444/17 and now clearly Adolph in Linhart/Adolph, SGB II, SGB XII, AsylbLG, as of May 2013, § 30 Rn. 13
2.2 – BSG, Judgment of 25 April 2018 – B 8 SO 24/16 R
(Editor's note):
Unemployed individuals who transition from Hartz IV benefits to basic income support for the elderly upon reaching retirement age have less of any additional income remaining. The corresponding regulations are justified and therefore not discriminatory.
Summary:
The fact that their earned income was taken into account to a greater extent in their social assistance benefits due to lower statutory allowances than previously in their receipt of benefits under the German Social Code, Book II (SGB II), is intentional on the part of the legislature and is not objectionable under constitutional law. This does not constitute impermissible age discrimination, nor does it result in indirect discrimination against women.
Source: juris.bundessocialgericht.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Berlin-Brandenburg State Social Court, Judgment of 22 March 2018 – L 29 AS 1852/16
Accommodation costs – second home – place of residence
Guiding principle (editor)
: Is a welfare recipient entitled to have the job center cover the costs of multiple accommodations?
Guiding principle (Editor)
1. No, this could only occur in the case of a necessary change of residence and the resulting so-called overlap costs.
2. If several apartments are used, a housing need is therefore only to be recognized under basic income support law for the apartment that forms the center of life, i.e. (only) for the apartment that is predominantly used (BSG, 17.02.2016 – B 4 AS 2/15 R).
3. A merely abstract risk of separation and the resulting potential need for alternative accommodation cannot justify a need for continued housing under Section 20 of the German Social Code, Book II (SGB II), because this would contradict fundamental principles of the law on basic income support for job seekers.
4. For example, according to Section 2 of the German Social Code, Book II (SGB II), those receiving benefits are obligated to exhaust all possibilities to end or reduce their need for assistance. They only receive benefits for basic needs to the extent that enables them to lead a life that is in accordance with human dignity (Section 1, Paragraph 1 SGB II). Maintaining multiple residences generally goes far beyond this minimum subsistence level, so only the costs of the primary residence are eligible for reimbursement under Section 22 SGB II.
5. If the person entitled to benefits is provided with free accommodation in this main residence, as in the present case, then their need for assistance within the meaning of Section 20 of the German Social Code, Book II (SGB II) is covered by others in accordance with Section 9 Paragraph 1 of the SGB II, and no entitlement to costs of accommodation arises in accordance with Section 22 of the SGB II.
Source: socialcourtsability.de
3.2 – Lower Saxony-Bremen State Social Court, Decision of 17 April 2018 – L 15 AS 9/18 B ER
Principle (Juris):
The right of permanent residence of family members of Union citizens is determined after the death of the Union citizen with whom they had their permanent residence at the time of his death exclusively according to the requirements of Section 4a Paragraph 3 of the Freedom of Movement Act/EU.
Source: www.rechtsprachung.niedersachsen.de
3.3 – State Social Court of Saxony-Anhalt, Judgment of 07.03.2018 – L 5 AS 376/16 – legally binding
Guiding principle (Editor):
The appeal was admissible. It is unclear in the case law of the Federal Social Court (BSG) whether, for the purposes of data analysis in the case of a "conclusive concept," data from other comparable areas ("housing market types") that are similar with regard to rental costs may be used in addition to data collected in the comparison area by means of cluster analysis.
Principle (Juris)
1. The Salzland district is not a single, unified comparison area, as it does not constitute a "homogeneous living space" within the meaning of the Federal Social Court's (BSG) jurisprudence due to its structural differences. It must be subdivided into 13 comparison areas, consisting of the cities, municipalities, and collective municipalities. These each form homogeneous living spaces and each has its own housing market (continuation of L 5 AS 1038/13, judgment of the Senate of September 13, 2017).
2. Determining a reasonable rent is not possible by retrospectively applying a concept to periods prior to data collection (here: March 1, 2012). A recalculation based on the consumer price index for all private households is not permissible.
3. If investigations by the court do not lead to a valid data basis, the housing costs before March 1, 2012, are to be granted up to the amounts according to § 12 WoGG plus a safety surcharge.
4. The Salzland district's directive of January 1, 2013, concerning gross rent excluding utilities, is based on a coherent concept that meets the requirements of the Federal Social Court (BSG). In particular, the data analysis in the form of a cluster analysis is not objectionable, as the data collection took place in the relevant comparison area.
5. This instruction applies to periods beginning with the data collection date (March 1, 2012), provided a cost reduction request has already been issued. Waste disposal fees payable by tenants must be paid separately.
Source: socialcourtsability.de
3.4 – Baden-Württemberg State Social Court, decision of 28.03.2018 – L 7 AS 430/18 ER-B
Principle (Juris):
A kidney disease requiring dialysis can constitute a special hardship within the meaning of Section 23 Paragraph 3 Sentence 6 SGB 12.
Source: socialcourtsability.de
3.5 – State Social Court for Saarland, decision of 11.12.2017
Unemployment benefit II – Accommodation and heating – Auction of the owner-occupied house by a self-founded company – Rental agreement as a self-dealing transaction – Repayment of a loan granted by a third party – Sham transaction
Principle (Juris):
1. The starting point for a benefit recipient's effective obligation to pay rent is generally the lease agreement, in which the rent owed was contractually agreed (see Federal Social Court [BSG] judgment of May 7, 2009 – B 14 AS 31/07 R = SozR 4-4200 § 22 No. 21 and judgment of March 3, 2009 – B 4 AS 47/08 R = BSGE 102, 295 = SozR 4-4200 § 11 No. 24). (Paragraph 10)
2. If, considering all circumstances, the lease agreement is clearly designed to regulate financial circumstances to the detriment of the respondent as the provider of benefits under Book II of the German Social Code (SGB II) and thus at the expense of the general public (here: the auction of the house occupied by the applicant, who has no assets, by a company she founded with a loan provided by a third party, whereby the agreed rent was to be used to repay the loan), then the social security provider is not obligated to cover the supposedly agreed basic rent (Sections 138, 117 of the German Civil Code (BGB)). The acquisition or financing of a house is not within the remit of the social security provider (cf. Federal Social Court (BSG) judgment of July 7, 2011 – B 14 AS 79/10 R = SozR 4-4200 § 22 No. 48, para. 18 and judgment of February 16, 2012 – B 4 AS 14/11 R = juris para. 23). (Paragraph 10)
Source: Juris
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – State Social Court Berlin-Brandenburg, Judgment of 22 February 2018 – L 23 SO 77/17
Entitlement of the emergency aid provider – Claim for reimbursement – Application deadline – Adequacy
Guiding principle (Editor)
1. On the dispute concerning the reimbursement of expenses for inpatient hospital treatment within the meaning of Section 25 of the German Social Code, Book XII.
2. According to Section 25 Sentence 2 of the German Social Code, Book XII (SGB XII), a claim for reimbursement under Section 25 Sentence 1 of the SGB XII only exists if the reimbursement is applied for within a reasonable period of time at the responsible social assistance provider.
Guiding principle (Editor):
Since the purpose of the deadline in Section 25 Sentence 2 of the German Social Code, Book XII (SGB XII) is to ensure that the social welfare agency is informed of the case as early as possible in order to make necessary arrangements for the continued provision of assistance (Bieback in Grube/Wahrendorf, SGB XII, 5th edition 2014, Section 25, marginal note 35), a one-month deadline is generally appropriate (cf. Federal Social Court [BSG] judgment of August 23, 2013 – B 8 SO 19/12 R –). While a longer deadline may be appropriate in individual cases due to special circumstances on the part of the emergency aid provider, the plaintiff has not presented any such special circumstances in the present case.
Source: socialcourtsability.de
4.2 – Baden-Württemberg State Social Court, Judgment of 14 December 2017 – L 7 SO 1138/17
Principle (Juris):
An obligation to provide information and cooperate regarding the income and assets of partners or other third parties exists only with respect to facts that are known to the applicant.
Source: socialcourtsability.de
4.3 – North Rhine-Westphalia State Social Court, Judgment of 15 March 2018 – L 9 SO 300/16
Child benefit is considered income despite being forwarded to the child; child benefit for adult children living in the household is considered income
Guiding principle (Editor)
1. According to the allocation rule of Section 82 Paragraph 1 Sentence 3 SGB XII, child benefit is only to be attributed to the respective child as income in the case of minor children.
Exception: Regarding the crediting of child benefit to the plaintiff receiving benefits under Book XII of the German Social Code (SGB XII) for her adult daughters who live in her household and despite the forwarding of the child benefit.
Principle (Editor):
Child benefit for adult children living in the household is, despite being passed on to the child, income of the person entitled to child benefit (contrary to the decision of the Higher Social Court of North Rhine-Westphalia of 26 April 2009, file number L 20 SO 99/07).
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Duisburg Social Court, decision of 02.02.2018 – S 48 SO 588/17 ER – legally binding
To maintain housing during incarceration
Guiding principle (Editor):
Regarding the procedure for preliminary legal protection to secure the assumption of rental costs during the applicant's imprisonment on the basis of Section 67 of the German Social Code, Book XII (SGB XII), but rejected here (unsuitable apartment of the applicant, duration of imprisonment cannot yet be estimated).
On retaining housing during imprisonment (commentary by the Debt Counseling Information Service)
1. When exercising discretion in the context of Section 67 Sentence 1 SGB XII / Section 68 Paragraph 1 Sentence 1 SGB XII, it may well be sensible to secure the preservation of accommodation already existing before the commencement of imprisonment for persons with social difficulties who are in custody, because for a released prisoner the loss of housing is significantly more difficult to compensate for than for other people, similar to the loss of employment.
2. In principle, the assumption of accommodation costs is possible in the case of an imminent, foreseeable release from prison.
3. The fact that an applicant will soon be released from detention does not automatically imply the existence of social difficulties within the meaning of Section 67 Sentence 1 of the German Social Code, Book XII (SGB XII).
4. A claim for benefits under Section 67 Sentence 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 68 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) cannot generally be asserted if the applicant is expected to be fully integrated back into working life after his release from prison.
5. When it comes to the continued financing of an apartment during imprisonment, the circumstances of the individual case must always be taken into account.
6. A social welfare agency must make a prognostic assessment as to whether the accommodation costs incurred during detention can be covered preventively within the meaning of Section 15 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 67 Sentence 1 of the SGB XII and Section 68 Paragraph 1 Sentence 1 of the SGB XII.
7. A rigid requirement of a maximum detention period of one year as a prerequisite for receiving benefits must be considered an abuse of discretion. An abstract assessment applicable to all cases finds no basis in the German Social Code, Book XII (Social Assistance), nor in any of the related legal regulations.
8. A sufficiently reliable prognosis cannot be justified if the living conditions to be expected after release from prison cannot be accurately assessed due to the length of the remaining period of imprisonment.
9. This is the case in the event of a conviction to a 20-month prison sentence, especially if, at the time of application, it is not foreseeable whether early release on probation is possible, the accommodation previously occupied is to be considered unreasonably large within the meaning of Section 35 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII), and the applicant can in all likelihood continue the gainful employment he was already engaged in before his imprisonment after his release from prison.
Source: www.infodienst-kreditnerberatung.de
6. Decisions of the State Social Courts and Social Courts on Asylum Law
6.1 – Lower Saxony-Bremen State Social Court, decision of 07.02.2018 – L 8 AY 23/17 B ER
No restriction of entitlement pursuant to Section 1a Paragraphs 2 and 4 of the Asylum Seekers' Benefits Act (AsylbLG) if the asylum procedure is still to be carried out in Germany
Principle (Juris):
A restriction of entitlement pursuant to Section 1a Paragraphs 2 and 4 of the Asylum Seekers' Benefits Act (AsylbLG) is not applicable according to the purpose and intent of the provision in Section 1a Paragraph 4 Sentence 2 of the AsylbLG, which was introduced by the Integration Act, if a legally binding administrative court decision establishes that the Federal Office for Migration and Refugees still has to make a substantive decision regarding the granting of refugee status (teleological reduction of Section 1a Paragraph 4 Sentence 2 of the AsylbLG). In such a case, a restriction of entitlement pursuant to Section 1a Paragraph 4 Sentence 2 of the AsylbLG does not apply even if international protection has already been granted by another Member State of the European Union and this protection remains in effect.
Source: www.rechtsprachung.niedersachsen.de
6.2 – Guiding principles by Dr. Manfred Hammel regarding the Berlin Social Court – No crediting of income of adult children against basic benefits under the Asylum Seekers' Benefits Act (AsylbLG)
Berlin Social Court, decision of January 30, 2018 (Case No.: S 70 AY 232/17 ER):
Regarding the affirmation of an asserted claim to the granting of basic benefits pursuant to Section 3 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the case of a Venezuelan national with an entitlement to benefits pursuant to Section 1 Paragraph 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) or Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act (AsylbLG).
1. The income and any assets of adult children living in Germany of a person entitled to benefits under Section 1 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) do not constitute income or assets to be taken into account pursuant to Section 7 Paragraph 1 Sentence 1 of the AsylbLG. Adult children are not considered family members within the meaning of Section 7 Paragraph 1 Sentence 1 of the AsylbLG. By analogy with Sections 19 Paragraph 1, 20, and 27 et seq. of the German Social Code, Book XII (SGB XII), only the income and assets of the person entitled to benefits (and, if applicable, those of their partner living in a marital or cohabiting relationship) may be considered by the authorities to reduce their entitlement to benefits under the AsylbLG.
2. Authorities may only assume alternative coverage of needs within the meaning of Section 8 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Sections 1601 et seq. of the German Civil Code (BGB) if the ability of children to provide maintenance is completely undisputed.
Source: www.asyl.net
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Receipt of benefits under SGB II/SGB XII and income/asset assessment, e.g. in inheritance cases, a contribution by lawyer Jens Kadner
If a person entitled to benefits has an inheritance claim, this does not always have to be taken into account by the job center as income to be counted towards their benefits.
If the receipt of benefits was interrupted between the death of the beneficiary and the disbursement of the inheritance, the inheritance is considered assets when applying for benefits under the German Social Code, Book II (SGB II), for which substantial allowances can be claimed. This was decided by the Hamburg State Social Court (LSG) in a recent ruling dated February 22, 2018 (L 4 AS 194/17).
However, due to the fundamental importance of the issue, an appeal to the Federal Social Court was granted.
More information: www.anwalt.de
7.2 – Fictitious Calculation of Unemployment Benefit I in the Case of Subsequent Correction of a Payroll Statement:
Commentary on the Social Court Karlsruhe, 2nd Chamber, Judgment of December 13, 2017 – S 2 AL 3606/16, a contribution by Thomas Neumair, Graduate in Public Administration (FH), Attorney at Law and Specialist Attorney for Employment Law
Principle:
A period of remuneration within the meaning of Section 150 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), which is settled upon termination of employment, does not exist if an accounting statement prepared by the employer for the disputed accounting month, even before the termination of the employment relationship for benefit purposes, erroneously shows no gross remuneration due to exceeding the period of continued payment of wages in case of illness, and a corrective accounting statement is only made after termination.
Further information: www.juris.de
7.3 – New brochure on family reunification under the Dublin III Regulation
Diakonie Germany has produced a new brochure on family reunification to Germany under the Dublin III Regulation – entitlement – procedure – practical tips.
It can be ordered in printed form at: www.diakonie.de
It can be found online at:
www.diakonie.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
