1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – North Rhine-Westphalia State Social Court, decision of 08.06.2018 – L 7 AS 420/18 B ER and L 7 AS 421/18 B – legally binding
SGB II benefits; preliminary legal protection; exclusion of benefits for EU citizens; possible violation of European Community law
Guiding principle (Editor)
1. Entitlement of the school-age child of a Union citizen as a former employee and his parents entitled to care to basic income support benefits ((as already decided by the Senate of 21.12.2017 – L 7 AS 2044/17 B ER).
2. The requirement of effective legal protection may give rise to an obligation to grant preliminary legal protection contrary to a statutory norm, i.e., not to apply a statutory provision (see also, in effect, the decisions of the Higher Social Court of North Rhine-Westphalia of 14 September 2017 – L 21 AS 782/17 B ER, of 21 August 2017 – L 19 AS 1577/17 B ER, of 16 August 2017 – L 19 AS 1429/17 B ER and of 12 July 2017 – L 12 AS 596/17 B ER; decision of the Senate of 21 December 2017 – L 7 AS 2044/17 B ER).
Source: socialcourtsability.de
1.2 – LSG Schleswig-Holstein, decision of June 1, 2018 (Case No.: L 6 AS 86/18 B ER):
Guiding principle by Dr. Manfred Hammel
1. On the recognition of the actual costs of accommodation pursuant to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), if the single mother and her minor son do not have access to a suitable apartment within the relevant local area, within the rent ceiling set by the SGB II provider for a two-person household, despite extensive and documented search efforts.
2. The educational situation of the minor son as a member of this household may justify limiting the geographical search area. This is especially true if a school change has already been necessary due to learning difficulties. It is unreasonable to expect this student to change schools again solely to reduce the costs of the accommodation he shares with his mother.
1.3 – State Social Court of Saxony-Anhalt, decision of 23 May 2018 – L 4 AS 913/17 B ER – legally binding.
Regarding the alternative right of residence under Section 3 Paragraph 1, Paragraph 2 No. 2 of the Freedom of Movement Act/EU – mother moves to Germany to be with her son, who provides her with monthly maintenance.
Guiding principle (Editor):
The applicant may be entitled to a (derived) right of residence under Section 3 Paragraph 1, Paragraph 2 No. 2 of the Freedom of Movement Act/EU as amended on 20 July 2017, as a family member of one of the Union citizens mentioned in Section 2 Paragraph 2 No. 1 of the Freedom of Movement Act/EU who are residing in the Federal Republic of Germany as an employee.
Source: socialcourtsability.de
1.4 – LSG Saxony-Anhalt, Decision of 30 May 2018 – L 4 AS 21/18 B ER
Social court proceedings – preliminary legal protection – calculation of the value of the appeal for educational support benefits
Principle (Juris):
The value of the appeal, which is decisive for the admissibility of the appeal, is assessed according to what the Social Court has denied the appellant or what it has obligated him to do.
Source: www.landesrecht.sachsen-anhalt.de
1.5 – Berlin-Brandenburg State Social Court, Judgment of 07.06.2018 – L 34 AS 201/15
Guiding principle (Editor):
1. Child benefit received, which was counted as income for the purpose of granting SGB II benefits, remains income even if the granting of child benefit is retrospectively revoked (compare BSG of 23.8.2011 – B 14 AS 165/10 R).
Legal tip: cf. Schleswig-Holstein Higher Social Court, decision of July 21, 2017 – L 3 AS 125/17 B PKH; Hessian Higher Social Court, judgment of April 24, 2013 – L 6 AS 376/1; Baden-Württemberg Higher Social Court, judgment of March 21, 2012 – L 2 AS 5392/11.
Source: socialcourtsability.de
Note:
See also the guiding principle (Juris).
If child benefit for tax purposes has been counted as income in the calculation of unemployment benefit II, and the child benefit award is subsequently revoked and the child benefit is reclaimed, the benefit recipient cannot demand exemption from this repayment claim from the social security agency responsible for benefits under Book II of the German Social Code (SGB II). Sections 102 et seq. of Book X of the German Social Code (SGB X) are neither directly nor analogously applicable. There are no constitutional concerns.
1.6 – LSG Berlin, decision of 20.06.2018 – L 31 AS 1002/18 B ER, L 31 AS 1003/18 B ER PKH
Principle (Juris):
An assurance regarding relocation can only be granted in preliminary legal protection proceedings if the conditions for anticipating the main issue are also met.
Source: www.gerichts Decisions.berlin-brandenburg.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Berlin, Judgment of June 22, 2018 – S 144 AS 15342/17
Vouchers and sanctions, an article by attorney Kay Füßlein.
In the case of a sanction against a member of a household receiving social assistance with minor children, the Berlin Social Court (judgment of June 22, 2018 – S 144 AS 15342/17) sees the necessity to grant vouchers and benefits in kind ex officio, even without an application.
If such a warning is omitted, the sanction is automatically unlawful.
In principle, vouchers are only issued upon request in the case of a sanction exceeding 30% (e.g., a 30% sanction and a failure to report); if minor children live in the household, they must be issued.
The Social Court of Berlin concludes from this that the Job Center must decide on this matter ex officio (ultimately in a positive manner).
The Berlin Social Court convincingly explains that the protection of minors must be ensured, as there is a risk that their benefits will be accessed in the event of a sanction.
The judgment is not yet legally binding and the legal question has not yet been decided (there is also no indication of proceedings before the Federal Social Court on this legal question).
The question of whether the plaintiff had actually committed a breach of duty (which was highly questionable) was therefore no longer relevant.
Judgment of the Social Court of Berlin of 22 June 2018 - S 144 AS 15342/17)
2.2 – Social Court Berlin, Judgment of 15 June 2018 – S 37 AS 153/18
Principle (Juris)
1. A provisional approval that is flawed from the outset can establish legitimate expectations even without an appeal against the provisional decision. A correction of the error within the framework of the final approval is then only possible under the conditions of Section 45 of the German Social Code, Book Ten (SGB X).
2. A provisional grant pursuant to Section 41a of the German Social Code, Book II (SGB II) entails an average calculation of all income earned during the grant period for the final calculation. Given the clear wording of the provision and the deliberations on the Ninth Act Amending the Second Book of the German Social Code, there is no room for a restrictive interpretation (limiting it to fluctuating earned income).
Source: socialcourtsability.de
2.3 – Social Court Dresden, Judgment of 14 June 2018 – S 52 AS 4307/17
Principle (Editor):
1. For the final determination, reliance could not be exercised on Section 41a Paragraph 3 of the German Social Code, Book II (SGB II) (inserted with effect from August 1, 2016, by the "Ninth Act Amending the Second Book of the German Social Code – Simplification of Law – and on the Temporary Suspension of the Obligation to File for Insolvency" of July 26, 2016, Federal Law Gazette I, p. 1824), because there is no provision that mandates the application of Section 41a Paragraph 3 SGB II for the period prior to August 1, 2016. The Chamber adheres to its established case law, Social Court A…, Judgment of January 11, 2018 – S 52 AS 4077/17; Social Court A…, Judgment of March 8, 2018 – S 52 AS 4555/17.
2. Section 80, paragraph 2, number 1 of the German Social Code, Book II (SGB II) stipulates that "for the final decision on benefit claims initially granted provisionally for benefit periods that ended before August 1, 2016," Section 41a, paragraph 5, sentence 1 applies, with the proviso that the one-year period begins on August 1, 2016. For benefit periods that had not yet ended before August 1, 2016, Section 41a of the SGB II applies, Section 80, paragraph 2, number 2 of the SGB II.
3. Accordingly, only the application of paragraph 5 is expressly stipulated. If point 1 were interpreted to mean that Section 41a should be applied in its entirety, the provision in point 2 would be nonsensical. For benefit periods that have already ended, the legislator, according to the wording of the provision, merely stipulates the application of the fiction of finality in Section 41a paragraph 5 of the German Social Code, Book II (SGB II), Social Court Berlin, judgment of September 25, 2017 – S 179 AS 6737/17; Social Court Leipzig, judgment of November 20, 2017 – S 17 AS 1746/17.
4. The decisive factor is therefore the principle of the period of validity (Federal Social Court [BSG], judgment of October 19, 2016 – B 14 AS 53/15 R; BSG, judgment of March 30, 2017 – B 14 AS 18/16 R). Substantive law must be applied for the period for which benefits were granted. This principle also applies to final decisions on benefit determinations. Both Section 41a of the German Social Code, Book II (SGB II) and Section 40 Paragraph 2 No. 1 of the SGB II (in the version applicable until July 31, 2016, aF) in conjunction with Section 328 Paragraph 2 of the German Social Code, Book III (SGB III), each regulate substantive law in connection with the provisions of the Unemployment Benefit II Ordinance (ALG II-V), (Social Court [SG] Berlin, judgment of September 25, 2017 – S 179 AS 6737/17).
Note: See also the guiding principle (Juris)
1. Section 41a paragraph 3 sentence 2 of the German Social Code, Book II (SGB II) does not establish any independent obligations to cooperate beyond those stipulated in Sections 60 et seq. of the German Social Code, Book I (SGB I). Sections 20 and 21 of the German Social Code, Book X (SGB X) apply.
2. If the recipient of benefits requests a hearing to submit documentary evidence for the final determination, the defendant must grant this opportunity and propose a date (see Social Court Dresden, decision of March 27, 2018 – S 20 AS 914/18 ER –, juris)
3. Rejecting original documents as proof of facts relevant to benefits is inadmissible. A corresponding statement renders the legal consequences information pursuant to Section 41a Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II) defective.
4. Section 41a of the German Social Code, Book II (SGB II), with the exception of paragraph 5, does not apply to benefit periods that had already ended before August 1, 2016 (adherence to the ruling of the Social Court of Dresden of January 11, 2018 – S 52 AS 4077/17 –, juris)
5. The length of the deadline to be set pursuant to Section 41a Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II) is determined by the circumstances of the individual case. (Adhering to the ruling of the Social Court of Dresden of 11 January 2018 – S 52 AS 4382/17).
Source: socialcourtsability.de
2.4 – SG Landshut, Judgment of 04.06.2018 – S 7 AS 606/16
Title:
Benefits, Notice, Standard Needs, Rejection, Cancellation, Participation, School, Attendance, Lawsuit, Legal Basis, Expenses, Institution, Exceptional Case, SGB II, Purpose, Community of Young People
Guiding principle (Editor):
On the affirmation of benefits for the plaintiff to participate in the wind instrument class of his school if he is in inpatient care.
Summary:
In the present case, Section 28 Paragraph 7 No. 2 of the German Social Code, Book II (SGB II) is applicable to the plaintiff, since participation in the wind instrument class at the plaintiff's school constitutes instruction in artistic subjects (e.g., music lessons!).
These benefits are not excluded under Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), because Section 7 Paragraph 4 SGB II only applies to benefit recipients capable of working. This can be inferred from the wording of this provision. In this respect, reference is made to the exception clause in Section 7 Paragraph 4 Sentence 3 No. 2 SGB II. Furthermore, the legislator assumed that someone who is in residential care is not capable of working (see Eicher, marginal note 135 on Section 7 SGB II). However, the plaintiff is not capable of working at all due to his age, Section 7 Paragraph 1 SGB II. Therefore, Section 7 Paragraph 4 SGB II is not applicable to the plaintiff according to the purpose and intent of this provision (see also the decision of the Higher Social Court of Baden-Württemberg of May 20, 2010 – L 7 AS 5263/08).
Source: www.gesetze-bayern.de
3. Decisions of the social courts on employment promotion law (SGB III)
3.1 – Social Court Karlsruhe, Judgment of 11 June 2018 – S 5 AL 352/18
Review procedure; Time limit for the revocation of an unlawful decision; Established case law; Waiting period upon leaving employment; Partial retirement agreement; Fault; Important reason; Relevant point in time; Seamless transition to old-age pension; Pension reduction; Subsequent change in the legal situation; Old-age pension for those with particularly long insurance periods
Principle (Juris)
1) If an employee terminates their employment relationship by concluding a partial retirement agreement, they can invoke a valid reason for leaving work if they intend to transition seamlessly into retirement following the partial retirement period and this appears feasible from a prognostic standpoint, particularly given the current pension law situation. It is irrelevant whether the employee later actually applies for an old-age pension in accordance with their original intention or whether they change their retirement plans, e.g., due to a change in the law.
2) If, in such a situation, the employment agency issues a decision wrongly imposing a sanction period due to job abandonment, the unemployed person can, in a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X), demand the revocation of the sanction decision – even if the sanction period predates the ruling of the Federal Social Court of September 12, 2017 (B 11 AL 25/16 R); Section 330 Paragraph 1 of the German Social Code, Book III (SGB III) does not preclude this.
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Asylum Law
4.1 – LSG Lower Saxony-Bremen, decision of 13 February 2018 (file no.: L 8 AY 1/18 B ER):
Guiding principle by Dr. Manfred Hammel
1. On substantiating the prerequisites for the existence of a special hardship case pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) in conjunction with Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the case of a 26-year-old Guinean national tolerated in the federal territory, who is completing vocational training as a carpenter here and who, without the receipt of supplementary benefits for subsistence (Sections 27 et seq. SGB XII), cannot secure his minimum subsistence level due to the low amount of the training allowance and the vocational training assistance, which in turn seriously jeopardizes the achievement of the training goal.
2. If the legislator, through Section 60a Paragraph 2 Sentence 4 of the Residence Act, pursues the political goal of promoting the integration of tolerated foreigners more strongly and at the same time taking into account the interest of the German economy in additional skilled workers, then needy asylum seekers who can generally assert a claim to analogous benefits under Section 2 of the Asylum Seekers' Benefits Act, possess a residence permit, do not come from a safe country of origin within the meaning of Section 29a of the Asylum Act, and who are dependent on assistance pursuant to Section 2 of the Asylum Seekers' Benefits Act in accordance with Chapter Three or Four of the Social Code, Book XII, for the completion or continuation of their education, should, as a rule, be enabled to finance their studies/training through the application of the hardship provision arising from Section 22 Paragraph 1 Sentence 2 of the Social Code, Book XII.
4.2 – Baden-Württemberg State Social Court, decision of 18 June 2018 – L 7 AY 1511/18 ER-B 18 June 2018
Principle (Juris):
According to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the decision imposing an initial restriction of benefits must be limited to six months. If, after the six-month period, the restriction is to be continued due to a continuing breach of obligations, the administration must, according to Section 14 Paragraph 2 of the AsylbLG, examine in the specific individual case whether a restriction of benefits can be maintained and, if necessary, may issue a new decision imposing a further, time-limited restriction of benefits.
Source: socialcourtsability.de
5. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Overview of case law Entitlement to social benefits of EU citizens
Continue reading: www.einwanderer.net
5.2 – Ten court rulings that you should know as a recipient of Hartz IV benefits, an article by attorney Christopher Richter LL.M., Eur Attorneys at Law NIGGL, LAMPRECHT & Colleagues
More information: www.anwalt.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
