1. Decisions of the Federal Social Court of 25 April 2018 on basic income support for job seekers (SGB II) and on social assistance (SGB X II)
1.1 – Federal Social Court, judgment of April 25, 2018 (Case No.: B 4 AS 19/17 R):
Guiding principle Dr. Manfred Hammel
1. Learning support within the meaning of § 28 para. 5 SGB II is more than just tutoring and basically includes any support for learning persons.
2. Enabling equal opportunities can only be effectively achieved through a broad understanding of this concept.
3. Learning support pursuant to Section 28 Paragraph 5 of the German Social Code, Book II (SGB II) can therefore cover not only short-term but also, if necessary, longer-term needs. On this basis, benefits can also be provided for an extended period.
4. However, Section 5 of the German Social Code, Book II (SGB II) requires the examination of possible priority benefits, such as integration assistance for mentally disabled children and adolescents (Section 35a of the German Social Code, Book VIII (SGB VIII)) and for disabled persons according to Sections 53 et seq. of the German Social Code, Book XII (SGB XII).
5. A reading and spelling disability can also be considered a disability in accordance with Section 2 Paragraph 1 of the German Social Code, Book IX (SGB IX).
6. Of decisive importance is therefore always the severity of the respective reading and spelling difficulties as well as the need to be covered within the framework of learning support according to § 28 para. 5 SGB II, which is to be determined ex officio (§§ 20 ff. SGB X).
1.2 – Federal Social Court, judgment of 25 April 2018 (Case No.: B 8 SO 20/16 R):
Guiding principle Dr. Manfred Hammel
1. The term “actual residence” within the meaning of Section 23 Paragraph 1 Sentence 1 SGB XII is to be understood in principle as the physical presence of applicants in the federal territory.
2. As a result of the linking of the responsibility for assistance to an actual stay within the area of responsibility of a social assistance provider (§ 98 para. 1 sentence 1 SGB XII), the German Social Code, Book XII (SGB XII) does not, in principle, provide for the granting of social assistance even in the case of only temporary stays abroad (such as holiday trips).
3. Social welfare benefits for needs arising abroad cannot generally be claimed.
4. Only short-term absences during an approval period of, for example, up to four weeks do not affect the responsibility of a social assistance provider.
5. Section 23 paragraph 1 sentence 4 of the German Social Code, Book XII (SGB XII) does not eliminate the requirement of actual residence in Germany, even if its prerequisites are met (in particular, possession of a settlement permit).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Schleswig-Holstein, decision of August 9, 2018 (Case No.: L 3 AS 144/18 B ER):
Guiding principle Dr. Manfred Hammel:
Especially in the case of single parent applicants, the necessity of a move can also be justified within the meaning of Section 22 Paragraph 6 Sentence 1, 2nd half-sentence SGB II in conjunction with Section 22 Paragraph 1 Sentence 2 SGB II if this creates a special spatial proximity to relatives and thereby improves the childcare situation and thus the integration prospects on the labor market.
2.2 – Lower Saxony-Bremen State Social Court, decision of 27 July 2018 – L 11 AS 561/18 B ER
Unemployment benefit II – Accommodation and heating – unreasonable accommodation costs – request to reduce costs – continued effect of the request despite interruption of benefit receipt due to taking up employment – unreasonableness of the move – granting of a renewed shortened transition period
Upon resumption of benefit payments, a (new) transitional period should have been granted in accordance with Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (six-month interruption of benefits).
Guiding principle (Editor):
If the receipt of benefits under the German Social Code, Book II (SGB II) is interrupted for six months after the issuance of an effective cost reduction request (§ 22 para. 1 sentence 3 SGB II), it must be examined, after a new application has been submitted, whether a new period for reducing accommodation costs begins to run, taking into account all the circumstances of the individual case.
Source: socialcourtsability.de
Note: Principle (Juris)
The warning and notification function of a cost reduction request remains effective even in the case of a short-term (here: four-month) interruption of SGB II benefit receipt, provided that the circumstances leading to the unreasonableness of the housing costs have remained essentially unchanged. If corresponding benefits are reapplied for after a significant interruption of SGB II benefit receipt, it must be examined, based on all the circumstances of the individual case, whether a new deadline for reducing housing costs should be granted.
See also: Effectiveness of the warning and notification function of a cost reduction request in the case of short-term termination of SGB II benefit receipt
The LSG Celle-Bremen has ruled that the principle that the job center does not have to pay the full rent for large and expensive apartments of Hartz IV recipients does not apply without limits.
According to the State Social Court, those who have worked in the interim and subsequently receive basic income support again may be entitled to a second transitional period.
Source: Press release from the Celle-Bremen Higher Social Court dated August 20, 2018: www.juris.de
2.3 – LSG Berlin-Brandenburg, decision of 05.07.2018 – L 32 AS 1045/18 B ER
Guiding principle (Editor):
The applicant's entitlement to consideration of the full standard benefit from the analogous application of Section 20 Paragraph 2 of the German Social Code, Book II (SGB II), is justified because the economic situation of the person entitled to benefits under the SGB II who lives with a partner who is not entitled to benefits under the SGB II or the SGB XII is comparable to that of a person entitled to benefits who is single or whose partner does not receive the full standard benefit for adults.
Guiding principle (Editor)
1. Membership in a household receiving social assistance is generally independent of whether the person included in the household receiving social assistance is himself entitled to benefits under the German Social Code, Book II (SGB II), for example because he has exceeded the age limit of Section 7 Paragraph 1 Sentence 1 No. 1 or has an entitlement to a pension (Judgment of the Federal Social Court of October 16, 2007 – B 8/9 b SO 2/06 R, Judgment of April 15, 2008 – 14/7b AS 58/06 R).
2. However, under these circumstances, where the partners in a household do not receive equivalent subsistence benefits, Section 20 Paragraph 2 of the German Social Code, Book II (SGB II) applies, meaning that an amount equal to standard benefit level 1 must be recognized for the standard benefit. This is because Section 20 Paragraph 2 of the SGB II, as the basic provision for the provision of lump-sum subsistence benefits, also applies in cases where two partners do not receive equivalent subsistence benefits, as provided for in Section 20 Paragraph 4 of the SGB II (Lenze in LPK-SGB II, 6th edition, Section 20, marginal note 37, judgment of the Federal Social Court).<BSG> from 6 October 2011 - B 14 AS 171/10 R), so that an amount equal to the standard needs level 1 is to be recognized for the standard needs.
Source: www.gerichts Decisions.berlin-brandenburg.de
2.4 – Berlin-Brandenburg State Social Court, decision of 25 July 2018 – L 32 AS 2145/17 B PKH
Income – double child benefit payment – liability for repayment obligations
Guiding principle (Editor):
Legal aid was granted because, according to the decision of the Berlin-Brandenburg Family Benefits Office, the double child benefit payment was subject to a repayment obligation, so that this amount cannot be considered income in any case (cf. Federal Social Court, judgment of August 23, 2011 – B 14 AS 165/10 R).
Source: www.gerichts Decisions.berlin-brandenburg.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 21.06.2018 – L 31 AS 1607/15 – legally binding.
The plaintiff is challenging a claim for reimbursement by the defendant due to a subsequent notification of the sale of a condominium.
Guiding principle (Editor):
The case law on readily available funds applies only to ongoing approval periods, not to claims for reimbursement.
Principle (Juris):
An economically and legally worthless legal position does not constitute assets within the meaning of Section 12 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2.6 – Berlin-Brandenburg State Social Court, Judgment of 17 May 2018 – L 34 AS 1068/12
Guideline (Editor)
: Deduction from income – Additional needs due to disability – Regular special measure – Income – Meal allowance – Additional meal expenses – Commuting allowance – Deduction of the insurance allowance – Car financing costs
Source: socialcourtsability.de
2.7 – North Rhine-Westphalia State Social Court, Judgment of 26 April 2018 – L 19 AS 671/14
Guiding principle (Editor)
On the granting of basic income support as a subsidy instead of a loan for residential property.
Guiding principle (Editor)
1. Subsequent changes that make realization more difficult or result in a lower or higher return when realizing the assets, i.e., that affect the value of the assets, must be taken into account.
2. The provision of basic income support in the form of a loan must cease when the available assets have been economically depleted or, in the case of a lien securing the repayment claim, when the encumbrances have reached the market value. This is because the recipient has a legal entitlement to basic income support in the form of a grant if and to the extent that they have no income or assets to use. However, someone who has depleted their assets also has no assets, and as a rule, someone who has encumbered their property up to its market value has depleted their assets (Federal Social Court, Judgment of August 25, 2011 – B 8 SO 19/10 R).
3. The land charge of €21,000.00, established to secure the defendant's claims to the entire property, also encumbers the separable portion. Therefore, the defendant's secured claim constitutes a deductible amount (Federal Social Court, judgment of February 18, 2010 – B 4 AS 28/09 R – and decision of November 2, 2011 – B 4 AS 154/11 B).
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – 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.
Guiding principle (Editor):
The China exchange does not take place within the framework of the school regulations of the state of Baden-Württemberg and therefore does not constitute a multi-day class trip within the meaning of Section 28 Paragraph 1 and Paragraph 2 No. 2 SGB II, the costs of which would have to be borne by the respondent.
Source: socialcourtsability.de
3.2 – Bremen Social Court, judgment of June 15, 2018 (Case No. S 28 AS 1213/16):
Guiding principle Dr. Manfred Hammel
1. The lack of data representativeness of the data and facts collected by a job center to determine the appropriateness of the costs for accommodation and heating (§ 22 para. 1 sentence 1 SGB II) already follows from the fact that an SGB II provider here predominantly records rents from housing companies and rents from smaller landlords are not adequately represented by the actually collected existing rents.
2. A corresponding error can also be identified if the rents collected in detail are predominantly concentrated in a few districts.
3. It is questionable whether the existing rents determined in 2010 are currently sufficient to adequately represent the rent level at the significantly later survey date.
4. This does not reveal the extent to which rents from long-term tenancies have been included, which are generally considerably lower than advertised or new contract rents.
5. In the event of a failure of local means of obtaining information, the job center shall cover the actual gross rent excluding utilities up to the limit of the maximum amounts stipulated in Section 12 of the Housing Benefit Act (WoGG), plus a safety margin of ten percent.
6. A person capable of working and receiving benefits can only subjectively implement cost-reduction measures pursuant to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), if they are aware that they are obligated to take such measures. This requires that the person capable of working and receiving benefits is sufficiently aware of the appropriate rent from the perspective of the SGB II agency, the central guideline in its relevant administrative directive, due to cost-reduction requests or other contexts.
4. Decisions of the State Social Courts on Employment Promotion (SGB III)
4.1 – Baden-Württemberg State Social Court, Judgment of 18 May 2018 – L 8 AL 4127/17
Guiding principle (Editor)
1. By receiving Swiss daily sickness benefits, the plaintiff has not completed any period of insurance which, according to Article 61 of Regulation (EC) No. 883/2004, must be taken into account by the defendant as a qualifying period.
2. The receipt of daily sickness benefits based on a private daily sickness benefit insurance in Switzerland therefore does not lead to any contribution/insurance period justifying an entitlement to unemployment benefits (see also State Social Court of Baden-Württemberg, judgment of 09.12.2008 – L 13 AL 4851/05).
See also principle (Juris)
1. The receipt of a daily allowance from a private health insurance company in Switzerland does not establish an insurance obligation to be taken into account for the qualifying period pursuant to Section 26 Paragraph 2 No. 2 of the German Social Code, Book III (SGB III), if the insured person was not employed within the scope of application of the SGB III within the reference period and also had no entitlement to ongoing wage replacement benefits under the SGB III.
2. Receiving daily sickness benefits based on private daily sickness benefit insurance in Switzerland does not result in any contribution/insurance period in Switzerland that would justify an entitlement to unemployment benefits. Credit may be given if, although no wages were received due to illness, an employment relationship still existed during the relevant period.
3. An applicant in Germany cannot successfully rely on the requirement in Article 61(1) of Regulation (EC) No 883/2004 to aggregate periods of insurance for the requested unemployment benefit by referring to the receipt of Swiss daily sickness benefits. The purpose of Article 61 of Regulation (EC) No 883/2004 is not to allow periods to become qualifying periods of insurance that are not qualifying under the law of the state of employment.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Baden-Württemberg State Social Court, Judgment of 21 June 2018 – L 7 SO 1715/16
Social assistance – Request for information from a potentially liable person for maintenance – Non-requirement of the actual existence of a maintenance claim – Negative evidence
Principle (Juris):
The legality of a request for information pursuant to Section 117 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) does not require that the recipient of assistance actually and demonstrably has a claim to maintenance. Only if a civil law claim is clearly excluded under objective, substantive law, is a request for information issued nonetheless, and demonstrably pointless, to be revoked (denied in the present case).
Source: socialcourtsability.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Liability arising from a declaration of commitment after recognition of refugee status
The Administrative Court of Gießen has partially dismissed several lawsuits by so-called refugee sponsors and ruled that the declarations of commitment, which were intended for the stay for humanitarian purposes, also extend to the period for which the foreigners had received a residence permit under Section 25 Paragraph 2 of the Residence Act after being granted refugee status, which is also granted for humanitarian reasons.
Further information: www.juris.de
6.2 – Guidance document: The training permit according to § 60a para. 2 sentence 4 et seq. of the Residence Act: Practical tips and background information
. Guidance document: The training permit according to § 60a para. 2 sentence 4 et seq.
Residence Act: Practical tips and background information
2nd edition, August 2018: www.der-paritaetische.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
