1. Decisions of the Federal Social Court of 09.08.2018 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 09.08.2018 – B 14 AS 32/17 R
Federal Social Court (BSG) on social benefits for EU foreigners: Social assistance even without a right of residence
1. Anyone without a right of residence in Germany should not receive social benefits – that is the intention of the legislator. However, in individual cases, an entitlement to social assistance may still exist, as the Federal Social Court (BSG) has now confirmed once again.
2. EU citizens without a right of residence may also be entitled to social assistance. This was confirmed by the Federal Social Court (BSG) on the appeal of an unemployed Italian man living in Germany (Judgment of 09.08.2018, Case No. B 14 AS 32/17 R).
More information: www.lto.de
1.2 – BSG, Judgment of 09.08.2018 – B 14 AS 1/18 R
Basic income support for job seekers – priority social benefits – obligation to apply for early retirement with pension reductions – unfairness in the case of an impending full retirement pension for those with particularly long insurance periods in 4 months
Guiding principle (Editor)
Federal Social Court: Pension reduction inadmissible
The early claiming of an old-age pension with deductions is unfair because the plaintiff, within the meaning of Section 3 of the Unfairness Ordinance, can receive an old-age pension without deductions "in the near future".
Summary:
If there is a gap of four months between the old-age pension with deductions and the old-age pension without deductions, the reference to claiming the reduced old-age pension according to Section 3 of the Unreasonableness Ordinance is unfair, because in this sense the possibility of an old-age pension without deductions exists "in the near future".
By exempting individuals from the obligation to accept a reduced old-age pension in anticipation of an "impending full old-age pension," the legislator, according to its regulatory intent, addressed the disproportion between the amount of reductions to be accepted in the event of early retirement and the comparatively short remaining period of entitlement to basic income support for jobseekers until the start of the full old-age pension. Measured against this, an additional four months of receiving basic income support, given an average pension duration of currently almost 20 years, is so short that requiring a recipient to accept a permanently reduced old-age pension is unreasonable.
Source: www.bsg.bund.de
Note: Federal Social Court: Pension reduction inadmissible
. Further information: www.ndr.de
1.3 – BSG, Judgment of 09.08.2018 – B 14 AS 20/17 R
Guiding principle (Editor):
1. Payments to replace valuables that someone already possessed before applying are to be attributed to assets and not income.
2. The case law of the Federal Social Court (BSG) regarding unemployment benefits and the Federal Administrative Court (BVerwG) regarding social assistance has already established that mere asset reallocations do not constitute an increase in value that qualifies as income. Similarly, the BSG has ruled for the German Social Code, Book II (SGB II), that savings remain assets upon disbursement. If, therefore, cash inflows resulting from the reallocation of existing assets are not to be used by the beneficiary as income for subsistence, the same applies to compensation for the loss or damage of an asset; the recipient does not receive any additional value from such compensation that they did not already possess.
Source: www.bsg.bund.de
Legal tip:
Compensation for damages, e.g., for the damage or loss of an item, which merely restores a previous financial situation, does not constitute an inflow of funds. The compensation is not income, but rather, like the item replaced by the compensation payment, constitutes an asset (LSG Berlin-Brandenburg, judgment of May 7, 2014, L 18 AS 3167/12).
Social Court Karlsruhe Judgment of 16.08.2011, – S 13 AS 1617/10 – Damages and other monetary benefits that merely restore a previous financial situation (here: reduction due to defective execution of the construction work on the owner's own home) are to be considered as assets even under the "inflow theory" regardless of the time of inflow (following BVerwG, Judgment of 18.02.1999, 5 C 14/98).
1.4 – BSG, Judgment of 09.08.2018 – B 14 AS 38/17 R
Guiding principle (Editor):
1. If the basic income support provider, upon application by the benefit recipient, has decided that the portion of the benefits attributable to accommodation and heating is to be paid directly to the landlord, this, according to its wording, systematic structure, and regulatory intent, establishes exclusively a right of receipt for the landlord that deviates from Section 42 of the German Social Code, Book II (SGB II). A landlord therefore acquires an independent, separately enforceable claim only from an explicit declaration of assumption of debt, by which the job center, irrespective of the direct payment decision pursuant to Section 22 Paragraph 7 Sentence 1 of the SGB II, undertakes to pay the landlord the rent owed by the benefit recipient.
2. However, according to the plaintiff's own submissions, the defendant did not make such a declaration.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, Judgment of 31 May 2018 – L 29 AS 1928/17 – An appeal against the refusal of leave to appeal has been filed by JC
Claim for reimbursement of costs – legal fees
Guiding principle (Editor):
A claim for reimbursement of expenses can be asserted as a claim for indemnification in the case of a continuing liability, and this claim for indemnification cannot be offset against a monetary claim due to a lack of similarity within the meaning of § 387 BGB.
Guiding principle (Editor)
1. The offsetting of a social security institution can also be effected by a public-law declaration of intent within the meaning of § 387 BGB.
2. The claim for reimbursement of costs under Section 63 of the German Social Code, Book X (SGB X) is a claim for exemption, not a claim for payment.
3. Due to the lack of similarity of the claims, the benefit provider cannot offset its own claims arising from reimbursement notices against a cost reimbursement claim of the benefit recipient pursuant to Section 63 of the German Social Code, Book X.
Source: sozialgerichtsbarkeit.de
Legal tip:
See also LSG Saxony-Anhalt, judgment of 15.03.2018 – L 2 AS 496/17
2.2 – State Social Court of Saxony-Anhalt, Judgment of 23 April 2018 - L 4 AS 609/14 – legally binding
Guiding principle (Editor)
: On funding from the placement budget for the purchase of a motor vehicle.
Source: socialcourtsability.de
2.3 – State Social Court of Saxony-Anhalt, decision of 28 June 2018 – L 4 AS 862/17 NZB – legally binding
Guiding principle (Editor):
1. A visit to family or to check on a residence does not fall under the guaranteed minimum subsistence level. Therefore, no entitlement arises from Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
2. A loan under Section 24 Paragraph 1 of the German Social Code, Book II (SGB II) is not an option if the costs have already been paid. Furthermore, the costs must not be provided as an integration benefit (Section 16 SGB II) or have arisen in the course of gainful employment (Section 11b SGB II).
Source: socialcourtsability.de
2.4 – State Social Court of Saxony-Anhalt, decision of 28 June 2018 – L 4 AS 885/17 NZB – legally binding
Guiding principle (Editor)
1. No granting of legal aid for the reimbursement of the purchase costs for a computer.
2. It is the responsibility of the beneficiaries to decide whether and at what cost they purchase a computer (see BT-Drs. 17/3404, p. 51).
3. The replacement of a computer does not constitute an additional need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2.5 – Lower Saxony-Bremen State Social Court, Decision of 01.11.2017 – L 15 AS 215/17 B ER
Principle (Juris)
1. An employment relationship with “20 hours per month in the field of cleaning” without suitable evidence that the employment is actually carried out and earned income is generated does not establish the necessary employee status.
2. The application of Section 7 Paragraph 1 Sentence 3 of the Residence Act is prohibited in any case if the family formation has already been completed and the provisions of Sections 27 et seq. of the Residence Act apply directly.
3. An EU citizen is not entitled to a right of residence for the purpose of maintaining family unity, even through the supplementary application of more favorable provisions of the Residence Act, because there is no entitlement to family reunification with her life partner under Section 29 of the Residence Act, and reunification with her minor children under Section 36 Paragraph 2 of the Residence Act in conjunction with Section 27 Paragraph 3 Sentence 1 of the Residence Act is precluded if she is receiving public maintenance benefits due to the lack of the basic requirements under Section 5 Paragraph 1 Sentence 1 Number 1 of the Residence Act (securing her livelihood).
4. The decision of the Federal Social Court (B 4 AS 54/12 R) does not imply that the cohabitation of unmarried foreign partners with their children, regardless of the securing of maintenance, leads to a right of residence guaranteed by Article 6 of the Basic Law.
Source: www.rechtsprachung.niedersachsen.de
2.6 – Holstein State Social Court, decision of 09.08.2018 – L 3 AS 144/18 B ER
Rent ceilings in the Segeberg district were partly calculated incorrectly and
Proximity to relatives for single parents and the associated improvement in their integration opportunities in the labor market are suitable grounds for justifying the necessity of relocation, an article by attorney Helge Hildebrandt
1. According to a recent ruling by the Schleswig-Holstein State Social Court, the company empirica, and subsequently the job center in the Segeberg district, incorrectly determined the rent ceiling for a three-person household (75 sq m rental apartment) in comparison area IV-East due to a rounding error. Instead of €490.00, the rent ceiling for a three-person household is therefore €500.00, including utilities. The Schleswig-Holstein State Social Court will conduct a final review in main proceedings to determine whether the Segeberg district's calculation method meets the requirements of a "conclusive concept" as defined by the Federal Social Court's jurisprudence.
2. Furthermore, the Schleswig-Holstein State Social Court ruled that a move pursuant to Section 22 Paragraph 6 Sentence 2 of the German Social Code, Book II (SGB II) is also "necessary" if single parents receiving benefits – in this case due to the unexpected death of the mother, who had previously assumed childcare responsibilities – wish to move closer to relatives. This is because the sister's ability and willingness – which was credibly demonstrated here – to help care for the children also increases the integration prospects of single parents receiving benefits into the labor market.
Source: Sozialberatung-kiel.de
Full text: sozialberatungkiel.files.wordpress.com
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Karlsruhe, Judgment of 22.01.2018 – S 6 AS 2575/16
The basic income support provider will not cover disposal costs for stored furniture.
Summary:
In the court's opinion, the disposal costs do not constitute an unavoidable need within the meaning of Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book Two (SGB II), nor reasonable accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1, Paragraph 6 Sentence 1 SGB II. This is because the disposal of the furnishings was based on the plaintiff's free choice, making it unreasonable to burden the community with these costs, which fall within the plaintiff's private sphere. The plaintiff could easily have collected the stored items from the shipping company and disposed of them himself without incurring any significant costs.
Source: Sozialgericht-karlsruhe.de
Legal tip:
Aurich Social Court, judgment of 08.03.2012 – S 35 AS 201/11 – legally binding
1. Costs for bulky waste disposal are considered part of the accommodation costs if the persons in need of assistance had to spend the bulky waste disposal costs for the operation or maintenance of their apartment.
2. Entitlement of the person entitled to basic income support to have the costs for the removal of bulky waste covered.
3.2 – Duisburg Social Court, Judgment of 29 June 2018 – S 49 AS 2087/17
Guiding principle (Editor):
The granting of an assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II aF), is only possible as long as the future possible move-in of the benefit recipient into the – new – apartment is still pending (Federal Social Court, Judgment of 06.04.2011 – B 4 AS 5/10 R).
Guiding principle (Editor)
1. There is no longer any need for the subsequent issuance of this assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), as soon as a future move into the apartment for which an assurance has been requested in the individual case is no longer actually possible. The purpose of an assurance under Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) is merely to eliminate uncertainties in advance of an impending change of residence (see Federal Social Court [BSG], Judgment of August 30, 2010 – B 4 AS 10/10 R, juris, para. 18; Federal Social Court [BSG], Judgment of December 17, 2009 – B 4 AS 19/09 R, juris, para. 19; Boerner, in: Löns/Herold-Tews, SGB II, 3rd edition 2011, Section 22 SGB II, para. 82; Berlit, in: Münder, SGB II, 6th edition 2017, Section 22 SGB II, para. 173 with further references).
2. Especially if Section 22 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II nF) were to focus solely on the cost-effectiveness of the new apartment, this specific individual apartment would be of central importance for the approval process, as its costs would determine all further considerations. With the elimination of the possibility of renting this specific apartment in the future, the possibility of a preliminary approval would then also be eliminated – all the more so.
3. Whether, due to the amendment of Section 22 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II) by the so-called Legal Simplification Act of August 1, 2016 (Federal Law Gazette I 2016, p. 1828), the requirement of a move is still applicable to the assurance procedure – as in Section 22 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II) in its previous version – is currently not definitively settled (against further examination of the requirement: Social Court Chemnitz, Decision of November 28, 2017 – S 26 AS 3938/17 ER, juris, para. 11; Piepenstock, in: Schlegel/Voelzke, jurisPK-SGB II, 4th ed. 2015, Section 22, para. 188.1; presumably also: Lauterbach, in: Gagel, SGB II / SGB III, 69th ed.). Supplementary delivery March 2018, § 22 SGB II, para. 105; against a further examination of necessity but in favor of increased advisory obligations of the basic income support provider: Luik, in: Eicher/Luik, SGB II, 4th edition 2017, § 22 SGB II, para. 177; seemingly in favor of a further examination of necessity: Geiger, Accommodation and Heating Costs under SGB II, 4th edition 2017, p. 318; in favor of a necessity examination – without explanation of the issue – also: Berlit, in: Münder, SGB II, 6th edition 2017, § 22 SGB II, paras. 171, 180; Breitkreuz, in: BeckOK Social Law, Rolfs/Giesen/Kreikebohm/Udsching, 48th edition, as of March 1, 2018, § 22 SGB II, Rn. 21). A higher court ruling on this issue is still pending.
4. While in isolated cases – which are not present here – a legitimate interest in a declaratory judgment has been affirmed in the special case where the granting of benefits becomes moot precisely because the beneficiary moves into the disputed apartment himself (see Higher Social Court of Mecklenburg-Western Pomerania, judgment of May 7, 2009 – L 8 AS 48/08, juris, para. 39), this exceptional situation is not applicable to the present case of renting the apartment to a third party. Only in the case of owner-occupancy does a corresponding continuation of the rejection decision in the form of the economic consequences of renting precisely the same apartment in question appear conceivable (see Higher Social Court of Mecklenburg-Western Pomerania, ibid.).
Source: socialcourtsability.de
3.3 – Social Court Hannover, 43rd Chamber, Decision of 02.07.2018 – S 43 AS 2003/18 ER
An interruption due to unemployment of up to one month is harmless to the continued existence of employee status according to Section 2 Paragraph 3 Sentence 1 No. 2 of the Freedom of Movement Act/EU, since the legal principle that an interruption of up to one month can be harmless can be derived from various parts of labor and social law.
Principle (Juris)
1. The continued existence of employee status and thus the right of residence pursuant to Section 2 Paragraph 3 Sentence 1 No. 2 of the Freedom of Movement Act/EU does not require uninterrupted employment (following BSG, judgment of July 13, 2017, file no.: B 4 AS 17/16 R).
2. An interruption due to unemployment of up to one month (in this case 26 days) does not affect the continued existence of employee status, since the legal principle that an interruption of up to one month can be inferred from various provisions of labor and social law (e.g. Section 141 Paragraph 2 No. 1 SGB III; Section 7 Paragraph 3 Sentence 1 SGB IV; cf. Federal Labor Court, judgment of August 28, 2008, file no.: 2 AZR 101/07) can be derived from labor and social law.
3. An "activity lasting more than one year" does not occur "by chance" within the meaning of the case law of the Federal Social Court (BSG) (ibid.) if the employee performed the same occupation in the employments, since he thereby objectively indicated that integration into the German labor market was intended.
Source: www.rechtsprachung.niedersachsen.de
3.4 – SG Stuttgart, decision of 20.09.2017 – S 12 AS 4934/17 ER
Reimbursement of expenses for multi-day class trips is only possible in accordance with school regulations
The Stuttgart Social Court has ruled that a student exchange, in which several students of the same grade travel abroad for several days or weeks and which has not been decided by the entire teaching staff with the consent of the school conference, does not constitute a multi-day class trip within the framework of school law regulations, with the consequence that the expenses incurred by the students concerned do not have to be covered by the job center as a need for education and participation.
Summary:
According to the Social Court, within the framework of benefits to secure subsistence under the German Social Code, Book II (SGB II), educational needs of students attending general or vocational schools, provided they do not receive vocational training compensation, are considered separately from the standard allowance (§ 28 para. 1 SGB II). According to § 28 para. 2 no. 2 SGB II, actual expenses for multi-day class trips within the framework of school regulations are recognized as such educational needs. The basic income support provider is only obligated to cover these expenses if the trip takes place within the framework of the school regulations of the state of Baden-Württemberg. While, in principle, student exchanges abroad can be conducted as "extracurricular school activities" and thus as class trips under Baden-Württemberg school law, the decision regarding the implementation of such exchanges rests with specific bodies. In particular, the entire teaching staff, with the consent of the school conference, must discuss the principles for conducting class trips, while the class representatives discuss the specific planning. Finally, the extracurricular activities must be approved by the school principal. Since, in the present case, the entire teaching staff and the school conference had not even been involved in the implementation of the student exchange itself, i.e., the "whether" of the trip to China, the social court could not determine that it was a class trip within the framework of school regulations.
Source: Press release from the Stuttgart Social Court dated August 2, 2018: www.juris.de
3.5 – Social Court Bremen, Judgment of 15 June 2018 – S 28 AS 1213/16, not published.
Legal basis: Section 22 Paragraph 1 Sentence 1 SGB II – Keywords: Housing costs, Bremen, A+K report
Guiding principle of attorney Fabian Rust:
1. A coherent concept must provide sufficient assurance that the actual conditions of the local rental housing market are realistically reflected. For this to be the case, the rental data used as the basis for the assessment must be representative. Representativeness is lacking at least
a) if predominantly rents from housing associations are recorded and the rents of smaller landlords are not adequately represented (see also Bavarian State Social Court, March 28, 2018 – L 11 AS 52/16) or
b) if the recorded rents do not guarantee that the data reflect the actual rent level in the entire comparison area, for example, because the rents collected are concentrated in a few districts. In any case, the recorded rents no longer guarantee that they reflect the entire comparison area if 80.55% of the recorded rent values are distributed across 6 of the 18 districts in the city, or if 41% of the rents relate to one district and a further 38% originate from five other districts out of a total of 18.
2. The recorded existing rents must be sufficiently current at the point of data collection. It must also be clear whether and to what extent rents from long-term tenancies have been included.
3. A lack of data representativeness cannot be compensated for by setting the guideline values based on a high percentile (here the defendant used a 50th percentile).
4. A lack of data representativeness cannot be remedied by updating, even if further rental data has been collected for the purpose of updating.
5. Even when applying the housing benefit table valid since 01.1.2016, a safety surcharge of 10% must be added to the maximum limit for the gross rent excluding utilities.
3.6 – SG Dortmund, Judgment of 23 July 2018 – S 31 AS 3328/15, not published.
Guiding principle (Editor):
Homeless people do not receive reimbursement for a washing machine as initial equipment despite proof of a free parking space.
4. Decisions of the State Social Courts on Employment Promotion (SGB III)
4.1 – LSG Baden-Württemberg Judgment of 29 June 2018 – L 8 AL 27/18
Principle (Juris):
In the assessment period according to Section 150 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), only remuneration paid on the basis of employment within the meaning of social security law is taken into account, which does not include remuneration paid for periods after a period of leave from work (similarly, Hamburg Higher Social Court, judgment of April 5, 2017 – L 2 AL 84/16, juris para. 18; Bavarian Higher Social Court, decision of July 18, 2016 – L 10 AL 133/16 NZB, juris para. 10; contra: North Rhine-Westphalia Higher Social Court of February 23, 2017 – L 9 AL 150/15 – juris).
Source: dejure.org
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – SG Stuttgart Judgment of 08.06.2018, S 11 SO 569/18
Principle (Juris):
1. Reimbursements for ancillary rental costs from the annual statement of accounts, which are paid to a recipient of basic income support for the elderly and those with reduced earning capacity, must be counted as income for that recipient. This also applies if the recipient deliberately reduces ancillary rental costs during the current fiscal year through above-average energy-saving behavior in order to use the expected reimbursement to cover expenses that they cannot finance from their regular benefits.
2. Even if the defendant has refrained from taking income into account in the past, this does not establish a permanent legal entitlement to exemption from income assessment.
Source: www.sg-stuttgart.de
5.2 – Osnabrück Social Court, decision of 04.02.2016 – S 5 SO 226/15 ER
Guiding principle (Editor):
1. Under social welfare law, child benefit is generally considered income of the person to whom it is paid (as the recipient or the person entitled to diversion). Child benefit paid to a parent as the recipient is only to be considered income of the adult child living outside the household if it is given to them promptly (within one month of payment or transfer of the child benefit) and if, without the "forwarding" of the child benefit, the conditions of Section 74 of the Income Tax Act (EStG) for diversion of the child benefit would be met (Federal Social Court, judgment of December 11, 2007 – B 8/9b SO 23/06 R). The applicant has not yet credibly demonstrated that the child benefit was forwarded to his daughter in December 2015.
2. The offsetting of income credited to an account by the bank within the framework of a current account agreement (overdraft facility) does not lead to a reduction in the amount of income to be taken into account. This is merely a use of income, which does not cause the inflow of the money to partially lose its character as income (Federal Social Court, Judgment of April 29, 2015 – B 14 AS 10/14 R).
Source: socialcourtsability.de
Legal tip:
See also Osnabrück Social Court, decision of 21 March 2017 – S 5 SO 222/16 ER
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Asylum law: The obligation to cooperate in the revocation procedure must be in accordance with EU law
The German Bar Association (DAV) criticizes the demand for a tightening of the obligation to cooperate in asylum law during revocation and withdrawal proceedings, as the sanctioning of failure to cooperate violates Union law.
On August 1, 2018, the German Federal Cabinet approved a draft law regulating the obligation of those granted international protection to cooperate in revocation and withdrawal proceedings, including corresponding sanctions for violations. The SPD parliamentary group is further demanding that the sanctions be tightened so that a failure to cooperate leads to a legal presumption that the asylum application is considered withdrawn and the protection status is deemed to have expired.
“These demands are incompatible with current EU law,” said lawyer Thomas Oberhäuser, Chairman of the Executive Committee of the Migration Law Working Group at the German Bar Association (DAV). “The revocation of the status of a person granted international protection is not at the discretion of the member states.”
Further information: www.juris.de
6.2 – Benefits for accommodation for those under 25 years of age even without the approval of the job center, a contribution by attorney Helge Hildebrandt on the Federal Social Court (BSG) ruling of April 25, 2018, B 14 AS 21/17 R
The Federal Social Court (BSG) has now ruled that a refusal to cover housing costs after a move without prior approval from the job center due to compelling reasons for the relocation requires that the recipient of unemployment benefit II (ALG II) under the age of 25 has actually concluded a rental agreement. This is not the case, for example, if a young benefit recipient moves into the apartment of friends, acquaintances, or – as in the case before the BSG – into the home of their girlfriend's family, without signing a rental agreement. In these cases, the ALG II recipient under the age of 25 is entitled to benefits for housing and heating in the amount of their share of the total rent.
More information: sozialberatung-kiel.de
6.3 – Higher Administrative Court of North Rhine-Westphalia, 07.03.2018 – 9 E 129/18
Regarding the right of a physically disabled homeless person to barrier-free accommodation – the necessity of case-by-case assessment.
Further information: www.justiz.nrw.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
