1. Decisions of the Federal Social Court of June 14, 2018 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of June 14, 2018 – B 14 AS 37/17 R
Should the housing benefit paid to the mother receiving benefits under SGB II for her underage child be taken into account as the child's income?
Children's housing benefit is monetary income within the meaning of Section 11 Paragraph 1 Sentence 1 SGB II.
Guidance sentence (editor)
1. The (children's) housing benefit granted to the plaintiff for her son is to be taken into account as income for the son. This follows from systematic connections within the WoGG and its relationship to SGB II. Based on the son's needs and the maintenance paid to him, this leads to a child benefit surplus of around 164 euros.
2. This child benefit surplus must be taken into account in full as income for the plaintiff. This is not contradicted by Section 1612b of the German Civil Code (covering cash needs through child benefit) because this is a purely maintenance law regulation, which is otherwise in accordance with the case law of the Federal Court of Justice (BGH dated December 14, 2016 - XII ZB 207/15) as well as Section 74 EStG can lead to the child being entitled to return.
Source: juris.bundessocialgericht.de
1.2 – BSG, judgment of June 14, 2018 – B 4 AS 23/17 R
Can a beneficiary who lives with his wife in a community of need claim the standard requirements for single people in accordance with Section 20 Paragraph 2 Sentence 1 SGB II and demand an exception to the application of the head share principle when distributing the accommodation costs if the wife is due to her restricted residence permit (expiry when receiving public benefits) has not realized a benefit entitlement to which she is generally entitled in accordance with SGB II?
Orientation sentence (editor)
There are no reasons to deviate from the headboard principle (cf. BSG of February 14, 2018 - B 14 AS 17/17 R). The only reason the defendant did not pay the then wife for a headboard was because she did not submit an application. This is not comparable to the reduction or loss of entitlement to benefits due to a so-called sanction.
Source: juris.bundessocialgericht.de
1.3 – BSG, judgment of June 14, 2018 – B 14 AS 22/17 R
Reduces a heating cost reimbursement from the energy supply company in accordance with Section 22 Paragraph 3 SGB II a. F the need for accommodation and heating if the service provider only covered the advance payment for heating costs in an appropriate amount and the reimbursement amount was partially raised by the beneficiary alone?
Short version BSG:
1. According to the version of Section 22 Paragraph 3 SGB II (aF) applicable at the relevant time in 2012, “repayments that are attributable to the need for accommodation and heating ... reduce the expenses for accommodation and heating after the month of Repayment".
2. There are no clear reasons to apply the amendment to the regulation, which only came into force on August 1, 2016, according to which repayments that relate to unrecognized expenses are not taken into account, in 2012.
3. The new regulation does not claim any prior effect and the previous regulation was within the limits of permissible typification with regard to other cases, such as only temporary receipt of services according to SGB II in the billing period or the obligation of service providers to assume additional demands from gas suppliers compatible.
Source: juris.bundessocialgericht.de
1.4 – BSG, judgment of June 14, 2018 – B 14 AS 28/17 R
Does Directive 2004/83/EC (so-called qualification directive) convey benefits claims according to SGB II contrary to the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 Number 3 SGB II?
Short text:
Children of recognized refugees cannot automatically claim Hartz IV benefits. A claim can only exist for so-called analogous social assistance benefits.
Source: www.zeit.de
Short version of the BSG:
1. At the time, as a person under the age of fifteen, the plaintiff basically fulfilled the requirements for a person entitled to benefits according to Section 7 Paragraph 2 SGB II because of living with her father. However, as a person entitled to benefits according to the AsylbLG, the exclusion of benefits according to Section 7 Paragraph 1 Sentence applied to her 2 No. 3 SGB II, as the Senate has already decided (BSG of December 21, 2009 - B 14 AS 66/08 R - SozR 4 4200 § 7 No. 14) and what should be adhered to.
2. Nothing else follows from Directive 2004/83/EC, which, with the term “social assistance” related in Article 28, as well as the fundamental right to guarantee a humane minimum subsistence from Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 GG, does not give rise to any entitlement to Included benefits from a specific livelihood system (see also BSG of May 28, 2015 - BB 7 AY 4/12 R - BSGE 119, 99 = SozR 4 3520 § 2 No. 5).
Source: juris.bundessocialgericht.de
1.5 – BSG, judgment of June 14, 2018 – B 14 AS 13/17 R
For a person living in a community of need according to SGB II, is a compensatory pension not to be taken into account as income in addition to a basic pension?
Guidance sentence (editor)
The compensatory pension received by her husband or father, with whom she lived in a so-called mixed needs community, according to the law on the recognition and provision of those politically, racially or religiously persecuted by National Socialism (PrVG) is not taken into account as income excluded according to SGB II. This follows from the exception made in Section 13a PrVG only for the basic pension and the lack of a purpose within the meaning of the then Section 11 Paragraph 3 No. 1 SGB II old version (cf. today Section 11a Paragraph 3 Sentence 1 SGB II) for the compensatory pension in the PrVG.
Source: juris.bundessocialgericht.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - LSG Lower Saxony-Bremen, judgment of April 17, 2018 (ref.: L 11 AS 1373/14):
Principle Dr.
Manfred Hammel 1. In accordance with Section 11b Paragraph 1 Sentence 1 No. 7 SGB II, maintenance-related expenses are only deductible from the income that can be taken into account in accordance with Section 11b Paragraph 1 Sentence 1 SGB II if they have actually been incurred, are based on a legal obligation and the maintenance obligation is titled.
2. Maintenance payments declared by an applicant that are not based on a legal obligation are in no way to be taken into account by the job center as deductible amounts from income, because only the fulfillment of legal maintenance obligations can be recognized here.
3. In cases in which there is obviously no statutory maintenance obligation, the SGB II providers and the social courts are authorized to independently examine the question of the applicant's legal maintenance obligation.
4. In principle, there is no maintenance obligation if the obligated applicant is unable to pay (Section 1603 Para. 1 BGB).
5. In principle, a person who is obliged to provide maintenance must always have the resources on which the respective applicant depends on to adequately cover the necessary living expenses.
6. The economic performance ends where the person liable for maintenance is no longer able to secure their own existence without any problems, i.e. they are required to apply for (top-up) benefits in accordance with Sections 19 ff. SGB II.
2.2 – LSG Bayern, decision of April 27, 2018 (ref.: L 11 AS 242/18 B ER):
Principle Dr.
Manfred Hammel 1. Assuming rent debts to secure accommodation is only justified i. S.d. § 22 para. 8 sentence 1 SGB II or § 36 para. 1 and 2 SGB XII, if the running costs for accommodation are abstractly reasonable within the meaning of § 22 para 1 SGB XII are. The long-term maintenance of an apartment with the aim of assuming rental debts can only be considered justified if the (future) running costs correspond to what is within the scope of Section 22 Paragraph 1 Sentence 1 SGB II or Section 35 Paragraph 1 Sentence 1 SGB
2. Services according to SGB II /
3. One of the tasks of a legal guardian (§§ 1896 ff. BGB) is to take the necessary steps to provide assistance for an applicant with significant mental disabilities that will enable this applicant to find another apartment (e.g . commissioning a real estate agent or applying for services in accordance with Sections 67 ff. SGB XII).
2.3 – Berlin-Brandenburg State Social Court, decision v. May 2, 2018 – L 32 AS 65/18 B ER – legally binding
Interim legal protection proceedings – additional appropriate learning support – school law provisions – special educational support focus on “intellectual development”
Guidance sentence (editor)
On the assumption of the costs for home learning support (individual tutoring) by way of interim legal protection (here affirmative)
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, judgment of April 26, 2018 – L 37 SF 146/17 EK AS
Guiding principle (Juris)
1. When asserting a claim for compensation in accordance with Sections 198 ff GVG, an impoverished party is not disadvantaged compared to a person with means because, in addition to the main proceedings, the court has to process complex legal aid proceedings in which there have been delays. The delay times must be determined uniformly for the entire procedure.
Connection to BSG B 10 ÜG 3/16 R (judgment of September 7, 2017)
Source: socialcourtsability.de
2.5 – LSG Berlin-Brandenburg, decision of October 26, 2017 (ref.: L 10 AS 1934/17 B ER):
Orientation sentence RA Dr.
Jens Lehmann Unknown bank accounts do not justify a temporary suspension of payments.
Principle Dr.
Manfred Hammel 1. Only the existence of bank accounts as such does not entitle a job center to temporarily stop payments in accordance with Section 40 Paragraph 2 No. 4 SGB II in conjunction with Section 331 Paragraph 1 Sentence 1 SGB III.
2. These are not facts that could lead to the loss of the entitlement to Alg II due to a denial of the need for help (Section 9 Para. 1 SGB II).
3. The complete withdrawal of benefits in accordance with SGB II despite recognizable efforts (albeit initially fruitless but later intensified with the involvement of youth welfare services) to obtain missing bank statements is to be viewed as disproportionate and therefore not appropriate for a family with small children.
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – Braunschweig Social Court, judgment of May 15, 2018 (ref.: S 44 AS 529/16):
Principle Dr.
Manfred Hammel 1. In principle, capital inflows into an applicant's current account must always be taken into account by the job center as income in accordance with Section 11 Paragraph 1 Sentence 1 SGB II to reduce the need.
2. Anything else can only apply if there is no actual increase in value associated with the income, e.g. B. if income is only made available temporarily and is subject to an effective repayment obligation from the start.
3. The same is the case if the applicant's mother, who only has a very low income from work, transfers money to him so that he can pay his rent until the job center recognizes these accommodation costs in accordance with Section 22 Paragraph 1 Sentence 1 SGB II has and in turn provides. The affirmation of a gift and the denial of a loan obligation are not possible here.
3.2 – Karlsruhe Social Court, judgment of January 18, 2018- S 15 AS 1809/16
Entitlements from company pension schemes in the form of a provident fund provision or company reinsurance insurance are not assets to be utilized within the meaning of Section 12 Paragraph 1 SGB II before the earliest possible claim of retirement pension from the statutory pension insurance.
Source: Sozialgericht-karlsruhe.de
3.3 – Osnabrück Social Court, judgment of December 29, 2012 – S 16 AS 572/12
Guidance sentence (editor)
Regarding the assumption of costs for issuing a certificate of inheritance.
Guiding principle (editor)
1. The plaintiff must bear the costs claimed from the standard benefit. In this respect, this is neither a special need within the meaning of Section 21 Paragraph 6 SGB II nor a one-off need within the meaning of Section 24 Paragraph 3 SGB II. With regard to the first basis for the claim, a takeover fails because of the costs the inheritance certificate is not an ongoing need. The case groups listed enumerated in Section 24 Paragraph 3 SGB II are also not available.
2. There is no unavoidable need i. S.d. Section 24 Paragraph 1 Sentence 1 SGB II, as it must be assumed that the costs of the certificate of inheritance can be borne by the estate.
Source: socialcourtsability.de
3.4 – Lüneburg Social Court, court decision dated May 22, 2018 (ref.: S 37 AS 990/15):
Principle Dr.
Manfred Hammel 1. A violation of the obligation to cooperate within the meaning of Section 48 Paragraph 1 Sentence 2 No. 2 SGB , which stands in the way of further benefit receipt. The sending of the employment contract and a notification of the specific amount of employment income does not have to be relied upon if all the data and facts relevant to a hiring decision are known to the SGB II provider.
2. Section 48 Paragraph 1 Sentence 2 No. 4 SGB This is not the case if an applicant only begins employment on the 13th of a month and the employer only promises remuneration for the beginning of the following month.
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – Braunschweig Social Court; Judgment of March 7, 2017 (ref.: S 9 AL 146/13):
Principle Dr.
Manfred Hammel In the case of a homeless recipient of Alg I, it is the responsibility of the job center where this destitute person appears to also ask about the applicant's current living situation and forward this information to the employment agency so that this social insurance provider does not stop paying unemployment benefits just because of one unknown address for summons.
4.2 – SG Speyer, judgment by April 25, 2018 – S 1 AL 181/16
(Insolvency money claim of the main contractor - insolvency of the subcontractor - fulfillment of the payment obligation under Section 14 AentG - no statutory transfer of claims - contractual assignment of wage claims - liability of the BA - no applicability of Section 170 Paragraph 4 SGB 3 - no contract to the detriment of third parties)
Guiding principle (Juris)
1. If a claim is made against a main contractor by the subcontractor's employees in the event of the subcontractor's impending insolvency in accordance with Section 14 AentG, the employees' claim to wages is not transferred to the main contractor by operation of law. (Rn.31)
2. If the subcontractor's employees have legally assigned their claims to wages to the main contractor, the main contractor can demand payment of insolvency money from the BA. (Rn.33)
3. In the event of the subcontractor's insolvency, the BA is ultimately also liable in relation to the main contractor for the wage claims secured by insolvency money. (Rn.42)
Source: www.landesrecht.rlp.de
5. Decisions of the state social courts on social assistance (SGB XII)
5.1 – Bavarian State Social Court, judgment of June 20, 2017 – L 8 SUN 8/13
On the requirements of a community similar to a civil partnership
Guiding principle (Juris)
1. Income and assets of a community similar to a civil partnership must also be taken into account for periods before January 1, 2011 in accordance with Section 43 Para.
2. The principles developed for the marriage-like community can be transferred to the civil partnership-like community without any deviations.
Note:
In the judgment on the deduction of insurance such as private liability insurance, household contents insurance, legal protection insurance, glass insurance, health insurance for the plaintiff, life insurance for the plaintiff and the witness, accident insurance for the witness and nursing pension insurance.
Source: socialcourtsability.de
6. Decisions of the state social courts on asylum law
6.1 – LSG Niedersachsen-Bremen, judgment of May 24, 2018 (ref.: L 8 AY 7/17):
Principle Dr.
Manfred Hammel 1. An exit date within the meaning of Section 1a Paragraph 2 Sentence 1 AsylbLG is to be understood as the date on which the person who is legally obliged to leave the country should leave the country - either voluntarily or through deportation. This is determined by the authority responsible in the procedure according to Sections 50 ff. Residence Act.
2. The immediate obligation to leave the country resulting from unauthorized entry into the federal territory (Sections 50 and 58 AufenthG) as such is sufficient - without previously setting a deadline for voluntary departure - to determine a departure date within the meaning of Section 1a Paragraph 2 Sentence 1 AsylbLG not from.
3. The fact of a different official responsibility based on the Dublin III Regulation (EU) 604/2013 is not covered by the wording of Section 1a Paragraph 4 Sentence 1 AsylbLG.
4. If the applicant's main motive for re-entering the federal territory is the good economic situation expected in Germany and the more favorable prospects of completing training or being able to work in comparison to the original host country Italy, and this If the intention is actually implemented, then the responsible public provider cannot impose any restrictions on claims in accordance with Section 1a Paragraph 1 AsylbLG and benefits must be approved in accordance with Section 3 Paragraph 2 AsylbLG. The dominant expectation here is to ensure the necessary livelihood from one's own resources, particularly those obtained through employment.
7. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other law books
7.1 – LSG Baden-Württemberg: Permanent exclusion from benefits according to § 2 AsylbLG due to repeated disappearances
AsylbLG §§ 2, 3 ff., 9 III;
SGB _
2. Repeated immersion is generally abstractly capable of influencing the duration of the stay.
3. The foreigner may not invoke a circumstance that he himself caused in bad faith. (author's principles)
LSG Baden-Württemberg, judgment of November 6th, 2017 - L 7 AY 2691/15, BeckRS 2017, 138020
Note from lawyer Eva Steffen, Cologne
Practical note
The reasons for the LSG's decision cannot be reconciled with the BVerfG's fundamental decision on Section 3 AsylbLG (ibid.) and the guidelines set out there.
The argument that the granting of benefits according to Section 2 AsylblG is merely a “benefit” and that these benefits go beyond the humane minimum subsistence level is already incomprehensible. When a claim is granted in accordance with Section 2 AsylbLG, benefits must be granted according to the “normal level” – in this case analogous to SGB XII.
The BVerfG only considered a differentiation in determining a humane subsistence minimum that deviates from this “normal standard” according to Section 3 AsylbLG to be permissible if the need for services necessary for survival differs significantly from that of other people in need and this is logically done in a process that is transparent in terms of content based on the actual can be occupied by this group in particular.
On the other hand, according to the BVerfG, a restriction to a subsistence minimum characterized by possible reduced needs for short stays is no longer justified, regardless of the respective residence status and regardless of the justification of an originally contrary forecast, if the actual stay has significantly exceeded the range of a short stay. In these cases, a timely transition from subsistence benefits for short stays to normal cases, based on the reasons for the different needs, must be provided for in the law.
further: rsw.beck.de
SG Munich, judgment of May 4, 2018 – S 46 EG 25/17 BG
Care allowance as income according to SGB II
Guiding principle (Juris)
1. Bavarian care allowance is to be counted as non-earmarked income and, in accordance with Section 10 BEEG, towards living expenses according to SGB II. (No. 10)
2. The job center can request reimbursement of childcare allowance from the parental allowance office in accordance with Section 104 SGB (No. 10)
Short version:
(a) Care allowance is not free of charge according to Section 11a Paragraph 3 SGB II. According to this provision, services that are provided on the basis of public law regulations for an expressly stated purpose would only be taken into account as income to the extent that the services under SGB II serve the same purpose in the individual case. Like all public services, the childcare allowance also serves a specific goal, here the goal of promoting the care of children by their parents (see printed matter 17/9114 of the Bavarian State Parliament of November 24th, 2015). However, the intended purpose according to Section 11a Paragraph 3 SGB II is not the motive or the reason for the creation of a service, but rather the intended use of the service (BSG, judgment of August 24, 2017, B 4 AS 9/16 R, Rn. 26). However, it is not specified how the care allowance is to be used by the benefit recipients. This means that there is no earmarked service according to Section 11a Paragraph 3 SGB II. The same also applies to parental allowance (BSG, judgment of December 1, 2016, B 14 AS 28/15 R, Rn. 21).
Source: www.gesetze-bayern.de
Legal tip:
aA SG Bayreuth, judgment of November 28th, 2017 - S 4 AS 363/17 - The Bavarian care allowance is not counted as income in SGB II. The judgment also applies to SGB XII.
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
