1. Decisions of the Federal Social Court of 14 June 2018 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 14.06.2018 – B 14 AS 37/17 R
Should the housing benefit paid to a mother receiving benefits under the German Social Code, Book II (SGB II), for her minor child be considered as the child's income?
Child housing benefit is considered income in money within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
Guiding principle (Editor):
1. The housing benefit (child benefit) granted to the plaintiff for her son must be considered as income for the son. This follows from systematic connections within the Housing Benefit Act (WoGG) and its relationship to the Social Code, Book II (SGB II). Based on the son's needs and the maintenance paid to him, this results in a child benefit surplus of approximately 164 euros.
2. This excess child benefit must be fully considered as income for the plaintiff. Section 1612b of the German Civil Code (BGB) (covering cash needs with child benefit) does not preclude this, as it is a purely maintenance-related provision which, moreover, according to the case law of the Federal Court of Justice (BGH, judgment of December 14, 2016 – XII ZB 207/15), can lead to a claim for reimbursement by the child, just as under Section 74 of the German Income Tax Act (EStG).
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 14.06.2018 – B 4 AS 23/17 R
Can a person entitled to benefits who lives with their spouse in a household receiving benefits claim the standard allowance for single persons according to Section 20 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), and demand an exception to the application of the per capita principle when distributing accommodation costs, if the spouse, due to her restricted residence permit (which expires upon receipt of public benefits), does not realize a benefit entitlement to which she is generally entitled under the SGB II?
Guiding principle (Editor):
No grounds for deviating from the principle of equal shares (see in more detail the Federal Social Court's decision of February 14, 2018 – B 14 AS 17/17 R) are apparent. The defendant did not pay the then-wife her equal share only because she had not submitted an application. This is not comparable to the reduction or elimination of the benefit entitlement due to a so-called sanction.
Source: juris.bundessocialgericht.de
1.3 – BSG, judgment of June 14, 2018 – B 14 AS 22/17 R
Does a heating cost refund from the energy supplier pursuant to Section 22 Paragraph 3 of the German Social Code, Book II (SGB II a. F.) reduce the need for accommodation and heating if the benefit provider has only covered the heating cost prepayment to a reasonable extent and the refund amount has been partially borne by the benefit recipient alone?
Summary of the Federal Social Court ruling:
1. According to the version of Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) (old version) in force during the relevant period 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 compelling reasons to apply the amendment to the regulation, which only came into force on 1 August 2016 and according to which repayments relating to unrecognized expenses are disregarded, as early as 2012.
3. The new regulation does not claim any retroactive effect and the previous regulation was compatible with the limits of permissible typification with regard to other case scenarios, such as the temporary receipt of benefits under the German Social Code, Book II (SGB II) during the billing period or the obligation of benefit providers to cover subsequent claims by gas suppliers.
Source: juris.bundessocialgericht.de
1.4 – BSG, Judgment of 14.06.2018 – B 14 AS 28/17 R
Does Directive 2004/83/EC (the so-called Qualification Directive) confer entitlement to benefits under the German Social Code, Book II (SGB II), contrary to the exclusion of benefits under Section 7 Paragraph 1 Sentence 2 Number 3 of the SGB II?
Summary:
Children of recognized refugees are not automatically entitled to Hartz IV benefits. They can only be entitled to so-called analogous social assistance benefits.
Source: www.zeit.de
Summary of the Federal Social Court (BSG):
1. As a minor under fifteen years old at the time, the plaintiff generally fulfilled the requirements for being eligible for benefits under Section 7 Paragraph 2 of the German Social Code, Book II (SGB II) due to living with her father. However, as an eligible person under the Asylum Seekers' Benefits Act (AsylbLG), she was subject to the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 3 of the SGB II, as the Senate has already ruled (BSG of December 21, 2009 – B 14 AS 66/08 R – SozR 4 4200 § 7 No. 14), and this ruling remains valid.
2. Nothing to the contrary follows from Directive 2004/83/EC, which, with the term ‘social assistance’ used in Article 28, just like the fundamental right to a dignified minimum standard of living under Article 1(1) in conjunction with Article 20(1) of the Basic Law, did not entail any entitlement to benefits from a specific social security system (see also, regarding the Directive, Federal Social Court judgment of 28 May 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 14.06.2018 – B 14 AS 13/17 R
If a person living in a household receiving benefits under the German Social Code, Book II (SGB II), receives a basic pension and also a supplementary pension, this should not be considered income?
Guiding principle (Editor):
The compensatory pension received by her husband or father, with whom she lived in a so-called mixed household, under the Law on the Recognition and Support of Those Persecuted for Political, Racial, or Religious Reasons under National Socialism (PrVG), is not excluded from being considered as income under the German Social Code, Book II (SGB II). This follows from the exception in Section 13a PrVG, which applies only to the basic pension, and from the lack of a designated purpose within the meaning of the former Section 11 Paragraph 3 No. 1 SGB II (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 income support for job seekers (SGB II)
2.1 – LSG Lower Saxony-Bremen, judgment of 17 April 2018 (Case No.: L 11 AS 1373/14):
Guiding principle Dr. Manfred Hammel
1. According to § 11b para. 1 sentence 1 no. 7 SGB II, maintenance-related expenses are only deductible from the income to be credited according to § 11 para. 1 sentence 1 SGB II if they have actually been incurred, are based on a legal obligation and the maintenance obligation is legally established.
2. Maintenance payments stipulated by an applicant that are not based on a legal obligation are not to be considered by the job center as deductions from income in any way, because only the fulfillment of legal maintenance obligations is eligible for recognition here.
3. In cases where there is obviously no legal obligation to provide maintenance, the SGB II agencies and the social courts are authorized to independently review the question of the applicant's legal obligation to provide maintenance.
4. In principle, there is no obligation to pay maintenance if the applicant is unable to pay (§ 1603 para. 1 BGB).
5. In principle, a person obligated to pay maintenance must always retain those funds on which the respective applicant depends to adequately cover their necessary living expenses.
6. The economic capacity ends where the person liable for maintenance is no longer able to secure their own existence without difficulty, i.e., is required to apply for (supplementary) benefits in accordance with Sections 19 et seq. of the German Social Code, Book II (SGB II).
2.2 – LSG Bayern, decision of April 27, 2018 (file no.: L 11 AS 242/18 B ER):
Guiding Principle by Dr. Manfred Hammel
: 1. The assumption of rent arrears to secure housing is only justified within the meaning of Section 22 Paragraph 8 Sentence 1 of the German Social Code, Book II (SGB II) or Section 36 Paragraphs 1 and 2 of the German Social Code, Book XII (SGB XII), if the ongoing housing costs are abstractly reasonable within the meaning of Section 22 Paragraph 1 Sentence 1 of the SGB II or Section 35 Paragraph 1 Sentence 1 of the SGB XII. The long-term preservation of housing, which is the purpose of assuming rent arrears, can only be considered justified if the (future) ongoing costs correspond to what the job center or social welfare office is required to cover within the relevant comparison area pursuant to Section 22 Paragraph 1 Sentence 1 of the SGB II or Section 35 Paragraph 1 Sentence 1 of the SGB XII.
2. Benefits under the German Social Code, Book II / XII (SGB II / XII) cannot be provided without taking into account the actual accommodation costs (here EUR 65 per month above the reasonable limit), especially if a significant part of the housing needs would remain unmet.
3. It is among the duties of a legal guardian (Sections 1896 et seq. of the German Civil Code) to initiate the necessary steps for assistance for an applicant with a significant mental disability, enabling that applicant to find alternative accommodation (e.g., engaging a real estate agent or applying for benefits under Sections 67 et seq. of the German Social Code, Book XII).
2.3 – Berlin-Brandenburg State Social Court, decision of 02.05.2018 – L 32 AS 65/18 B ER – legally binding
Preliminary legal protection proceedings – supplementary appropriate learning support – school law provisions – special education focus on “intellectual development”
Guiding principle (Editor):
On the assumption of costs for in-home learning support (individual tutoring) by way of preliminary legal protection (here affirmed)
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, Judgment of 26 April 2018 – L 37 SF 146/17 EK AS
Principle (Juris)
1. An indigent party is not disadvantaged compared to a party with means when asserting a claim for compensation under Sections 198 et seq. of the Courts Constitution Act (GVG) simply because the court has to process a complex legal aid proceeding in addition to the main proceedings, which has experienced delays. The delays must be determined uniformly for the entire proceeding.
Connection to BSG B 10 ÜG 3/16 R (Judgment of September 7, 2017)
Source: socialcourtsability.de
2.5 – LSG Berlin-Brandenburg, decision of 26 October 2017 (file no.: L 10 AS 1934/17 B ER):
Guiding principle by attorney Dr. Jens Lehmann:
Unknown bank accounts do not justify a temporary suspension of payments.
Guiding principle by Dr. Manfred Hammel
: 1. The mere existence of bank accounts as such does not entitle a job center to issue a provisional suspension of payments pursuant to Section 40 Paragraph 2 No. 4 of the German Social Code, Book II (SGB II) in conjunction with Section 331 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III).
2. These are not facts that could lead to the loss of entitlement to unemployment benefit II due to a denial of need for assistance (§ 9 para. 1 SGB II).
3. The complete withdrawal of benefits under the German Social Code, Book II (SGB II), despite recognizable (albeit initially fruitless, but later intensified with the involvement of youth welfare services) efforts to obtain missing bank statements, is to be considered disproportionate and therefore not within the bounds of discretion in the case of a family with small children.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Braunschweig Social Court, judgment of May 15, 2018 (Case No.: S 44 AS 529/16):
Guiding 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, thus reducing the need for benefits.
2. A different rule may only apply if the income is not associated with any actual increase in value, e.g., if income is only made available temporarily and is subject to an effective repayment obligation from the outset.
3. The same applies if the applicant's mother, who herself has only a very low earned income, transferred money to him so that he could pay his rent until the job center has recognized these housing costs pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) and is itself making the payment. The affirmation of a gift and the denial of a loan obligation are not possible here.
3.2 – Social Court Karlsruhe, Judgment of 18 January 2018 – S 15 AS 1809/16
Entitlements from company pension schemes in the form of a support fund pension or company reinsurance are not considered assets to be realized within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II), before the earliest possible date of claiming an old-age pension from the statutory pension insurance.
Source: Sozialgericht-karlsruhe.de
3.3 – Osnabrück Social Court, Judgment of 29 December 2012 – S 16 AS 572/12
Guiding principle (editor)
on the assumption of costs for issuing a certificate of inheritance.
Principle (Editor):
1. The plaintiff must bear the claimed costs from his standard benefits. These costs do not constitute a special need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), nor a one-off need within the meaning of Section 24 Paragraph 3 of the SGB II. Regarding the first legal basis for the claim, reimbursement fails because the costs of the certificate of inheritance do not represent a recurring need. Furthermore, the specific categories of cases listed in Section 24 Paragraph 3 of the SGB II are also not applicable.
2. There is no unavoidable need within the meaning of Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), since it must be assumed that the costs of the certificate of inheritance can be borne from the estate.
Source: socialcourtsability.de
3.4 – Social Court Lüneburg, judgment of 22 May 2018 (file no.: S 37 AS 990/15):
Principle by Dr. Manfred Hammel
: 1. A violation of the duty to cooperate within the meaning of Section 48 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book X (SGB X) cannot be argued if a recipient of unemployment benefit II (Alg II) informs the job center by telephone in detail about taking up employment subject to social security contributions and earning an income that precludes further benefit entitlement. The submission of the employment contract and information on the specific amount of earned income are not required if all data and facts relevant to a hiring decision are already known to the SGB II agency.
2. Section 48 Paragraph 1 Sentence 2 No. 4 of the German Social Code, Book X (SGB X) only applies if the applicant was already aware, or grossly negligent in not being aware, of the cessation of their entitlement to social benefits when the recipient received notification of the payment of welfare benefits. This is not the case if an applicant only takes up employment on the 13th of a month and the employer only promises payment at 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 (Case No.: S 9 AL 146/13):
Guiding principle of Dr. Manfred Hammel:
In the case of a homeless recipient of unemployment benefit I, it is the responsibility of the job center, where this destitute person appears, to also inquire about the current housing situation of this applicant and to forward this information to the employment agency, so that this social insurance institution does not suspend the unemployment benefit payment solely because of an unknown address for service of process.
4.2 – SG Speyer, Judgment of 25.04.2018 – S 1 AL 181/16
(Insolvency compensation 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 Federal Employment Agency – no applicability of Section 170 Paragraph 4 SGB III – no contract to the detriment of third parties)
Principle (Juris):
1. If a main contractor is sued by the employees of a subcontractor due to the subcontractor's impending insolvency pursuant to Section 14 of the Posted Workers Act (AentG), the employees' claim for wages does not automatically transfer to the main contractor. (Paragraph 31)
2. If the subcontractor's employees have validly assigned their wage claims to the main contractor by legal transaction, the main contractor can demand payment of insolvency benefits from the Federal Employment Agency. (Paragraph 33)
3. In the event of the subcontractor's insolvency, the Federal Employment Agency (BA) is ultimately liable to the main contractor for the wage claims covered by insolvency benefits. (Paragraph 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 20 June 2017 – L 8 SO 8/13
Among the requirements for a civil partnership-like relationship
Principle (Juris)
1. According to Section 43 Paragraph 1 of the German Social Code, Book XII (SGB XII), income and assets of a community similar to a civil partnership must also be taken into account for periods before January 1, 2011.
2. The principles developed for cohabiting relationships are transferable without deviation to cohabiting relationships similar to registered partnerships.
Note:
In the judgment regarding the dismissal of insurance policies such as private liability insurance, household insurance, legal expenses insurance, glass insurance, the plaintiff's health insurance, the plaintiff's and the witness's life insurance, the witness's accident insurance and long-term care insurance.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Asylum Law
6.1 – LSG Lower Saxony-Bremen, Judgment of 24 May 2018 (Case No.: L 8 AY 7/17):
Guiding principle by Dr. Manfred Hammel
: 1. A departure date within the meaning of Section 1a Paragraph 2 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is understood to be the date on which the departure of the person subject to enforceable deportation is to take place – either voluntarily or by deportation. This is determined by the authority responsible in the proceedings pursuant to Sections 50 et seq. of the Residence Act (AufenthG).
2. The immediate obligation to leave the country arising from an unauthorized entry into the federal territory (§§ 50 and 58 AufenthG) is not sufficient as such – without the prior setting of a deadline for voluntary departure – to determine a departure date within the meaning of § 1a para. 2 sentence 1 AsylbLG.
3. The situation of a different official jurisdiction based on the Dublin III Regulation (EU) 604/2013 is not covered by the wording of Section 1a Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
4. If the applicant's primary motivation for re-entering Germany is the anticipated favorable economic situation and the more favorable prospects – compared to their original country of entry, Italy – of being able to complete vocational training or find employment, and if this intention is also being acted upon, then the responsible public authority cannot impose any restriction of benefits under Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) and benefits under Section 3 Paragraph 2 of the AsylbLG must be granted. In this case, the prevailing expectation is that the applicant will secure their necessary livelihood from their own resources, particularly those obtained through employment.
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – LSG Baden-Württemberg: Permanent exclusion from benefits under Section 2 AsylbLG due to repeated absconding
Act (AsylbLG) §§ 2, 3 ff., 9 III; Social Code Book X (SGB X) § 44
1. If an asylum seeker has abusively influenced the duration of his stay in the Federal Republic of Germany, he is permanently excluded from benefits under § 2 para. 1 AsylbLG.
2. Repeated submersion is generally suitable, in abstract terms, to influence the duration of the stay.
3. A foreigner may not invoke a circumstance that he himself caused in bad faith. (Author's guidelines)
Baden-Württemberg Higher Social Court, Judgment of November 6, 2017 – L 7 AY 2691/15, BeckRS 2017, 138020,
Commentary by Attorney Eva Steffen, Cologne
Practical note:
The grounds for the decision of the LSG are not compatible with the fundamental decision of the BVerfG on § 3 AsylbLG (ibid.) and the guidelines established therein.
The argument that granting benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) is merely a "privilege" and that these benefits exceed the minimum subsistence level is already incomprehensible. Upon recognition of an entitlement under Section 2 AsylbLG, benefits must be granted according to the "normal standard" – in this case, analogous to the German Social Code, Book XII (SGB XII).
The Federal Constitutional Court had deemed a differentiation in the determination of a humane minimum standard of living deviating from this “normal standard” under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) permissible only if the need for essential services differs significantly from that of other people in need and this can be logically demonstrated in a transparent procedure based on the actual needs of precisely this group.
A restriction to a subsistence minimum shaped by any reduced needs for short stays is, according to the Federal Constitutional Court, no longer justified – regardless of the respective residence status and irrespective of the validity of an initially contrary prognosis – at least when the actual stay has significantly exceeded the duration of a short stay. For these cases, the law must provide for a timely transition from subsistence-level benefits for short stays to standard benefits, based on the reasons for the differing needs.
Continue reading: rsw.beck.de
Social Court Munich, Judgment of 04.05.2018 – S 46 EG 25/17 BG
Childcare allowance as income under SGB II
Principle (Juris):
1. Bavarian childcare allowance is considered non-earmarked income and, pursuant to Section 10 of the Federal Parental Allowance and Parental Leave Act (BEEG), is to be credited against benefits for subsistence under Book II of the German Social Code (SGB II). (Paragraph 10)
2. The job center can demand reimbursement of childcare allowance from the parental allowance office in accordance with Section 104 of the German Social Code, Book X (SGB X). (Paragraph 10)
Summary:
(a) Childcare allowance is not exempt from income calculation under Section 11a Paragraph 3 of the German Social Code, Book II (SGB II). According to this provision, benefits provided under public law for a specifically stated purpose are only to be considered as income to the extent that the benefits under SGB II serve the same purpose in the individual case. Like all public law benefits, childcare allowance also serves a specific purpose, in this case, the purpose of promoting childcare by parents (see Bavarian State Parliament document 17/9114 of November 24, 2015). However, the stated purpose under Section 11a Paragraph 3 SGB II is not the motive or the reason for the provision of a benefit, but rather the intended use of the benefit (Federal Social Court, judgment of August 24, 2017, B 4 AS 9/16 R, para. 26). It is not specified, however, how the childcare allowance is to be used by the recipients. Therefore, this is not a benefit earmarked for a specific purpose pursuant to Section 11a Paragraph 3 of the German Social Code, Book II (SGB II). The same applies, incidentally, to parental allowance (Federal Social Court, Judgment of December 1, 2016, B 14 AS 28/15 R, para. 21).
Source: www.gesetze-bayern.de
Legal tip:
According to the ruling of the Social Court of Bayreuth of November 28, 2017 – S 4 AS 363/17 – Bavarian childcare allowance is not considered income under the German Social Code, Book II (SGB II). This ruling also applies to the German Social Code, Book XII (SGB XII).
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
