1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG NRW, decision of 31.07.2018 – L 19 AS 616718 B
Guiding principle by attorney Lars Schulte-Bräucker
1. Interpretation of a decision according to the perspective of a reasonable recipient who takes into account the context which the authority has demonstrably included in its decision, cf. BSG judgment of 06.04.2011, B 4 AS 119/10 R.
2. If, upon interpretation of the operative provisions from the recipient's perspective, any doubt remains as to whether and to what extent a provisional authorization exists, it must generally be assumed that a final authorization has been granted.
3. A final decision on benefits, even if made in error, replaces the preliminary decision and becomes the subject of the ongoing proceedings pursuant to Sections 86 and 96 of the Social Court Act (SGG), cf. judgment of the Federal Social Court (BSG) of 5 July 2011, B 14 AS 36/16 R.
4. Section 48 of the German Social Code, Book X (SGB X) is also applicable to initially unlawful long-term administrative acts if the circumstances change after their issuance.
5. Section 45 of the German Social Code, Book X (SGB X) does not preclude revocation due to a subsequent change in those factual or legal circumstances on which the illegality is not based, cf. Federal Social Court (BSG), judgment of March 28, 2013, B 4 AS 59/12 R.
6. A hearing may be dispensed with if the plaintiff was personally aware of this inflow of income, cf. BSG, judgments of 04.06.14, B 14 AS 2/13 R and of 21.02.2013, B 10 EG 12/12.
7. The so-called subsequent addition of reasons or the reliance of the decision on a different legal basis is permissible if the scope or substance of the administrative act and the legal defense of the affected party are not thereby unduly impaired or impeded. Such a change in substance is assumed if it is based on a fundamentally different set of circumstances or a different legal basis serving a different purpose; see Federal Social Court (BSG) judgments of September 28, 2017, B 3 KS 3/15 R, of April 7, 2016, B 5 R 26/15 R, and of June 25, 2015, B 14 AS 30/14 R.
8. The issuance of an administrative act is not to be understood as the time of the issuance of the decision by the administration, but rather as the time of its becoming effective pursuant to Section 39 Paragraph 1 of the German Social Code, Book X (SGB X), cf. Federal Social Court (BSG), judgment of June 4, 2014, B 14 AS 2/13 R.
9. In the event that the defendant invokes the deemed notification provision of Section 37 II 1 SGB X, the applicability of this provision requires that the defendant be able to prove on which day he mailed the decision, cf. BSG, judgment of 28 November 2006, B 2 U 33/05 R.
10. If, however, a "departure note" merely documents the date on which the decision left the area of responsibility, this does not meet the requirements of Section 37 II 1 SGB X, see also LSG NRW, decision of 24.04.2014, L 6 AS 2145/12 B.
Source: Lawyer Lars Schulte-Bräucker,
Kalthofer Str. 27, 58640 Iserlohn-Kalthof
1.2 – Berlin-Brandenburg State Social Court, Judgment of 13 June 2018 – L 18 AS 784/17
Crediting of back payments of unemployment benefits against benefits under the German Social Code, Book II (SGB II).
Guiding principle (Editor)
1. Classic back payments such as the ALG 1 in the present case are not subject to the regulation of § 11 para. 2 sentence 3 SGB II aF, but only ongoing income that is paid regularly, but not in consecutive months (cf. State Social Court of North Rhine-Westphalia, judgment of November 9, 2015 – L 19 AS 924/15).
2. The back payment of unemployment benefits was not a one-off payment, but rather an ongoing income within the meaning of Section 11 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II aF).
Source: socialcourtsability.de
1.3 – LSG Berlin-Brandenburg, decision of 07.06.2018 – L 18 AS 884/18 B ER
Preliminary legal protection – order for suspensive effect – revocation and reimbursement order – unemployment benefit II – exclusion from benefits – EU citizens
Guiding principle (Editor):
Granting of basic income support benefits to a resident Union citizen by way of preliminary legal protection.
Source: socialcourtsability.de
1.4 – Lower Saxony-Bremen State Social Court, Judgment of 05.07.2018 – L 6 AS 80/17
Guiding principle (Editor):
The plaintiff did not bring about his need for assistance within the meaning of Section 34 Paragraph 1 of the German Social Code, Book II (SGB II) (in the version applicable until July 31, 2016) by driving under the influence of alcohol, which led to the loss of his driver's license and subsequently to the loss of his job.
Source: socialcourtsability.de
Note:
Driving under the influence is not antisocial behavior.
The LSG Celle-Bremen has ruled that a professional driver's private journey under the influence of alcohol, resulting in the loss of his driver's license and job, has no specific connection to causing his need for assistance and therefore does not trigger a claim for reimbursement of costs by the job center in the case of socially unacceptable behavior.
Furthermore: According to the State Social Court, a professional driver's driving under the influence of alcohol during their leisure time does not, in principle, constitute a specific link to creating a need for assistance, as would be the case, for example, with the squandering of assets. Therefore, while the plaintiff's conduct is a legally reprehensible act, it is not considered socially unacceptable, meaning the plaintiff is not required to reimburse the "Hartz IV" benefits. In doing so, the State Social Court followed the jurisprudence of the Federal Social Court, which denies social unacceptability even in cases of criminal offenses that foreseeably lead to imprisonment and thus the loss of earning potential.
Source: Press release from the Celle-Bremen Higher Social Court dated August 13, 2018: www.juris.de
See also the guiding principle of Dr. Manfred Hammel:
A conviction for negligent drunk driving that leads to the loss of employment as a truck driver does not constitute an act that can be considered socially unacceptable within the meaning of Section 34 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). There is no evidence here that the applicant's intention was to destroy his professional livelihood and thus become dependent on public assistance pursuant to Section 9 of the SGB II.
1.5 – Bavarian State Social Court, decision of 31 July 2018 – L 15 AS 730/18 B ER
Unsuccessful application for permission to be absent from the place of residence
Principle (Juris):
If a person entitled to benefits applies for approval of an absence from their place of residence, legal remedies against the first-instance decision are subject to the admission restriction pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG).
Source: socialcourtsability.de
1.6 – Bavarian State Social Court, Judgment of 18 July 2018 – L 15 AS 686/16
Guiding principle (Editor)
1. On the plaintiff's entitlement to supplementary benefits for trainees pursuant to Section 27 of the German Social Code, Book II (SGB II) for accommodation and heating needs.
2. The plaintiff is not entitled to a subsidy pursuant to Section 27 Paragraph 3 of the German Social Code, Book II (SGB II) (old version). Pursuant to Section 7 Paragraph 5 of the SGB II, he is excluded from benefits to secure his livelihood under the SGB II insofar as these exceed the benefits provided under Section 27 of the SGB II. No exception to this exclusion under Section 7 Paragraph 6 of the SGB II applies.
3. The plaintiff cannot claim a loan pursuant to Section 27 Paragraph 4 of the German Social Code, Book II (SGB II aF) for the costs of accommodation and heating relating to his apartment.
Source: socialcourtsability.de
See also: Entitlement to supplementary benefits for trainees
Principle (Juris)
1. In view of the legislative purpose of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), namely the prevention of hidden educational support within the SGB II system, it is not possible to deviate from the strict requirements for the acceptance of a hardship case within the meaning of Section 27 Paragraph 4 (here: in the version of December 20, 2011), which were established by the Federal Social Court (BSG), and to recognize a further category of cases – such as the consideration of commendable commitment and solidarity within the family.
2. Regarding the prerequisites for accepting a hardship case within the meaning of Section 27 Paragraph 4 of the German Social Code, Book II (SGB II aF).
1.7 – Bavarian State Social Court, decision of 19 July 2018 – L 11 AS 329/18 B ER
Continued validity of employee status
Principle (Juris)
1. The subject matter of the preliminary injunction proceedings is determined by the corresponding main proceedings. If, after a refusal of performance, a subsequent application has been filed and a decision has been made on it, the subsequent period is not the subject of preliminary injunction proceedings against the first refusal of performance.
2. The question of whether a right of residence that continues to apply after more than one year of self-employment and involuntary cessation or interruption of the activity due to incapacity for work because of various illnesses pursuant to Section 2 Paragraph 3 Sentence 1 of the Freedom of Movement Act/EU is limited in time is open and cannot be conclusively clarified within the framework of preliminary legal protection.
Source: socialcourtsability.de
1.8 – LSG Munich, decision of 06.08.2018 – L 11 AS 712/18 NZB
Deductibility of costs for maintaining two households as necessary expenses when a move is unreasonable
Principle (Juris):
Costs for maintaining two households are deductible from income as necessary expenses only if, among other things, a move is unreasonable for the person concerned; this is a case-by-case decision in each instance.
Source: www.gesetze-bayern.de
1.9 – Saxon State Social Court, Judgment of 22 March 2018 – L 3 AS 907/16
Despite the landlord's offsetting of the operating cost reimbursement against rent arrears, it was to be considered as income to be taken into account – Section 22 Paragraph 1 Sentence 4 SGB II a. F
Guiding principle (Editor)
1. Because taking into account an inflow of income with retrospective effect does not leave a current need unmet, but rather, after the revocation of the grant and recovery, (only) a future liability to the basic income support provider arises, there is no contradiction to the principle of considering income as "available funds" (cf. BSG, judgment of November 29, 2012 – B 14 AS 33/12).
2. According to the principles of "available funds" developed by case law, the decisive factor is whether the income received is suitable as "available funds" to cover the specific needs in the respective month (see Federal Social Court [BSG], judgment of August 19, 2015 – B 14 AS 43/14 R). The principles of available funds therefore do not preclude the consideration of an amount withheld by a third party with debt-discharging effect, at least if the benefit recipient retains sufficient funds to cover their subsistence minimum (see Federal Social Court [BSG], judgment of May 24, 2017 – B 14 AS 32/16 R).
3. In cases such as the present one, where the generation of income to be taken into account or the release from a liability becomes known significantly after the distribution period, the question of the suitability of the received income to cover the specific needs in the respective month does not arise, because the benefit provider, insufficiently informed about the events, has already provided sufficient funds. Regardless of the funds paid by the benefit provider, the necessary needs may also have been met in other ways.
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Schleswig Social Court, judgment of April 25, 2018 (Case No.: S 16 AS 128/16):
Guiding principle by Dr. Manfred Hammel
: 1. Attendance at an integration course by a recipient of unemployment benefit II does not constitute integration into a public-law school system. However, this is a prerequisite for the applicability of the preferential provision arising from Section 1 Paragraph 4 Sentence 1 of the Unemployment Benefit II Ordinance (Alg II-VO), an exception to the general rule of income crediting under Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
2. Only the period between two school terms can be considered school holidays within the meaning of Section 1 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II). A school relationship must already exist while a student is engaged in holiday work. Therefore, the period before the initial establishment of a public-law school relationship cannot be considered "school holidays" according to Section 1 Paragraph 4 Sentence 1 of the SGB II. However, this is the case if an integration course is completed immediately before starting school.
2.2 – Social Court Hildesheim – Case No.: S 35 AS 435/14 of 18.06.2018
Standards: Section 11 SGB II – Keywords: Estimated income, self-employed persons, tax advisor fees, release from confidentiality for public health officer
Guiding principle (Editor)
1. Based on the previous legal situation regarding Section 40 SGB II aFiVm Section 328 SGB III, which is applicable here, case law has already concluded that in cases where, objectively, at the time of the administrative decision, only the possibility of a prognosis exists, particularly with regard to the income situation (e.g., in the case of fluctuating income), a final decision is unlawful (cf. BSG, judgment of 29.11.2012 — B 14 AS 6/12 R).
2. The following cost items claimed by the plaintiffs should be recognized as business expenses.
Ancillary costs of money transactions: These include account maintenance fees, the rental of an EC card terminal, and administrative costs for loans and returned direct debit fees. Such costs should be closely related to the generation of the plaintiff's income.
Other operating expenses: This refers to purchases that the company needs, such as toilet paper, wrapping paper, and other costs that are unrelated to the company's accounts. These costs should also be directly related to the generation of income and should not be disproportionate to the company's earnings.
Regarding the bookkeeping costs, the question arises as to whether such costs are still proportionate to the company's income. On the other hand, the chamber tends to agree with the opinion of the Stade Social Court, according to which, for the inclusion of these costs as business expenses within the framework of Section 11 SGB II, it is important whether the partners have acquired accounting knowledge as part of their training, for example to avoid these costs^.
3. However, the court also notes, as an obiter dictum, that requiring the defendant to issue a release from confidentiality in order to obtain the results of an official medical report would likely constitute an unreasonable obligation for the plaintiff. In this respect, the court is unaware of any legal obligation that takes precedence over data protection and would require the plaintiff to issue a release from confidentiality.
Source: Law firm Sven Adam: www.anwaltskanzlei-adam.de
2.3 – Munich Social Court, Judgment of 19 April 2018 – S 46 AS 2799/16
Trial stay in a secure psychiatric facility – benefits to secure livelihood are secondary
Guiding principle (Editor):
1. The plaintiff is not in need of assistance under SGB II and SGB XII because, according to the Bavarian Act on the Remuneration of Persons in Preventive Detention (BayMRVG), a comprehensive, priority system of benefits exists within the context of preventive detention. Furthermore, even during trial periods of residence, there is an exclusion from benefits pursuant to Section 7 Paragraph 4 of SGB II.
2. The execution of preventive detention orders pursuant to Section 63 of the German Criminal Code (StGB) is carried out by judicial order and constitutes a measure of judicially ordered deprivation of liberty. It therefore falls under Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II). This also applies to the easing of detention restrictions for the purpose of trial residence pursuant to Article 18 of the Bavarian Preventive Detention Act (BayMRVG).
Source: socialcourtsability.de
Legal tip:
See judgment of the Lower Saxony-Bremen State Social Court of 24 March 2015, L 7 AS 1504/13
Note: Principle (Juris)
During preventive detention pursuant to Section 63 of the German Criminal Code (StGB) in conjunction with the Bavarian Preventive Detention Act (BayMRVG), a comprehensive, independent system of benefits exists to cover all basic needs. This also applies to the provision of trial living arrangements under Article 18 of the BayMRVG; these trial living arrangements are an integral part of preventive detention. The benefit system for preventive detention under the BayMRVG takes precedence over the German Social Code, Book II (SGB II) and Book XII (SGB XII). There is no need for assistance under Section 9 Paragraph 1 of the SGB II, and simultaneously, there is an exclusion from benefits under Section 7 Paragraph 4 of the SGB II. Social assistance benefits for subsistence are secondary, pursuant to Section 2 of the SGB XII. This also applies to the provision of trial living arrangements.
3. Decisions of the social courts on employment promotion (SGB III)
3.1 – Social Court Berlin, Judgment of 03.08.2018 – S 58 AL 243/18
Guiding principle (Editor):
On the question of whether the confirmation of the involuntary nature of unemployment to be issued by the Federal Employment Agency (BA) for job-seeking EU citizens to obtain an entitlement to benefits under Book II of the German Social Code (SGB II) is a contestable administrative act and whether a change to the confirmation can be achieved by means of a declaratory action against the defendant.
Principle (Juris)
1. The confirmation by the employment agency regarding the voluntary/involuntary nature of unemployment pursuant to Section 2 Paragraph 3 of the Freedom of Movement Act is not an independently contestable administrative act, but rather a dependent procedural act accompanying the unemployment benefit II approval procedure within the meaning of Section 56a of the Social Courts Act.
2. The confirmation by the employment agency regarding the voluntary/involuntary nature of unemployment pursuant to Section 2 Paragraph 3 of the Freedom of Movement Act (FreizügG) has no legal effect on the benefit entitlement to be determined by the job center
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – North Rhine-Westphalia State Social Court, Judgment of 27 June 2018 – L 9 SO 521/16
Guiding principle (Editor):
Regarding the consideration of additional needs due to costly diets (gluten intolerance and lactose) for the past, which is denied in this individual case).
Source: socialcourtsability.de
4.2 – Bavarian State Social Court, Judgment of 12 July 2018 – L 18 SO 38/18
Guiding principle (Editor):
1. If documents and information relevant to the benefit are requested that the benefit provider cannot obtain themselves, the plaintiff has a duty to cooperate. If the plaintiff fails to submit the requested information within a reasonable period, the benefit can be denied for that reason alone.
2. The defendant's decision to reject the plaintiff's claim for benefits on the merits, which is based on the lack of eligibility requirements, does not replace the previous decision to refuse benefits pursuant to Section 66 of the German Social Code, Book I (SGB I), nor does it amend it (see also Social Court Munich of 12 October 2017 – S 46 AS 899/17, juris; similarly, Schleswig-Holstein Higher Social Court of 11 November 2015 – L 9 SO 58/12).
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Kassel, judgment of July 26, 2018 (Case No.: S 11 SO 160/16):
Guiding principle Dr. Manfred Hammel:
The use of a sign language interpreter for a hearing-impaired primary school student, so that school events (including lunch and homework supervision) can also be attended in the afternoon hours, constitutes assistance for appropriate schooling within the meaning of Section 54 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII), which is to be granted regardless of income and assets in accordance with Section 92 Paragraph 2 No. 2 SGB XII.
5.2 – Social Court Magdeburg, decision of July 20, 2018 (file no.: S 25 SO 13/18 ER):
Guiding principle by Dr. Manfred Hammel
1. On the assumption of the costs for a sign language interpreter for 15 hours per week as a kindergarten assistant within the framework of integration assistance for disabled people (§§ 53 ff. SGB XII) as a service for participation in community life pursuant to § 55 para. 2 nos. 2, 4 and 7 SGB IX.
2. Integration assistance may also include the provision of a sign language interpreter, insofar as such a specialist is required to enable a disabled person to participate in community life.
3. This is especially true when, in cases of severe hearing loss, verbal language acquisition cannot be expected even with the provision of hearing aids.
5.3 – Social Court Halle, decision of June 8, 2018 (file no.: S 13 SO 9/18 ER):
Guiding principle of Dr. Manfred Hammel
on the obligation of the social welfare provider to grant integration assistance for disabled persons (§§ 53 ff. SGB XII) in the form of the assumption of costs for a home-based sign language course if appropriate, one professional service hour of 90 minutes x EUR 75,- plus travel time 2 x EUR 25,- (EUR 162.50) as well as a support period of twelve months within the framework of a personal budget (§ 57 SGB XII).
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Braunschweig Social Court, judgment of July 31, 2018 (Case No.: S 15 SB 8/18):
Guiding principle Dr. Manfred Hammel:
Anyone who receives benefits for care in accordance with Sections 61 et seq. of the German Social Code, Book XII (SGB XII), as well as for necessary living expenses in accordance with Section 27b Paragraph 2 of the German Social Code, Book XII (SGB XII), can also claim a voucher for free public transport in accordance with Section 145 Paragraph 1 Sentence 10 No. 2 of the German Social Code, Book IX (SGB IX).
6.2 – From Hartz IV to retirement without deductions
Retiring without deductions: For Hartz IV recipients in old age, this is often just a wish. By law, from age 63, old-age pensions take precedence over social assistance – even if this means a reduction in pension payments. Things get tricky when only a few months remain until retirement without deductions, and the job center still sends Hartz IV recipients into retirement with deductions. A man from Neubrandenburg took his case all the way to the Federal Social Court – and won.
By Niklas Ottersbach, MDR AKTUEL.
More information: www.mdr.de
6.3 – Federal Social Court (BSG) ruling on entitlement to housing-related social benefits – No shortcut for landlords: Landlords
who rent out living space to recipients of Hartz IV benefits cannot directly sue the job center for rent arrears, the Federal Social Court (BSG) ruled. Martin Kellner explains the decision and why it doesn't work under civil law rather than social law either.
More information: www.lto.de
Fines – and the daily rate for recipients of unemployment benefit II – Federal Court of Justice, judgment of June 26, 2018 – 1 StR 79/18
The rental costs paid by the job center must be taken into account when calculating the daily rate.
When determining the daily fine amount, the first step is to ascertain the net income the offender has or could have on a given day, taking into account their personal and economic circumstances (§ 40 para. 2 sentences 1 and 2 of the German Criminal Code). This income also includes rent paid by the job center as part of general living expenses.
More information: www.rechtslupe.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
