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 – BSG, Judgment of 25.04.2018 – B 14 AS 15/17 R
Consideration of assets – Failure to disclose a life insurance policy – Limitation of the repayment claim to the amount that would have been taken into account at the beginning of the benefit period – Hardship provision of Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 2 of the German Social Code, Book II (SGB II)
When basic income support benefits are withdrawn and reimbursed due to undisclosed assets, is the reimbursement limited to the amount that would have resulted as assessable assets at the beginning of the benefit period after deduction of allowances?
Guiding principle (Editor)
1. In the case of undisclosed assets, there is no legal basis for limiting the suspension of benefits and reimbursement to the maximum assets that would have been fictitiously used up if the assets had been lawfully disclosed (based on BSG, judgment of 25.04.2018 – B 4 AS 29/17 R).
2. Full repayment of Hartz IV benefits in the case of concealed assets (here life insurance) – also not a special hardship within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 Alternative 2 SGB II.
Source: www.bsg.bund.de
Note:
Guiding principle Dr. Manfred Hammel
1. In the situation of benefit approval, existing assets that are to be realized and realizable according to § 12 para. 1 SGB II are to be taken into account in the subsistence security systems of SGB II and SGB XII as long as they are actually available on the applicant's side.
2. Whether the use of assets constitutes a particular hardship within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6, Alternative 2 of the German Social Code, Book II (SGB II), can only be assessed by considering the circumstances at the time the decision under review was issued, i.e., during the benefit approval process. Only from this perspective can it be evaluated whether the use of assets represents a corresponding atypical special situation.
3. This presupposes exceptional circumstances of the individual case that demand a significantly greater sacrifice from the person concerned than mere hardship, and certainly not the cutbacks always associated with the realization of assets. Whether this is the case can only be determined by comparison with other affected parties in similar approval situations, and not retrospectively from the perspective of rescission.
1.2 – BSG, Judgment of 25 April 2018 – B 8 SO 24/16 R
Guiding principle (Editor)
: The Federal Social Court (BSG) also does not consider the lower amount of the allowance for earned income compared to the German Social Code, Book II (SGB II), to be constitutionally objectionable.
Guiding principle Dr. Manfred Hammel
1. According to the meaning and purpose of Section 82 Paragraph 3 Sentence 3 SGB XII, it is not permissible to grant an increased allowance for income from an activity performed solely on the basis of age.
2. Applying Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) generally to income from activities of persons who have already reached the age limit according to Section 41 Paragraph 2 of the SGB XII would be inconsistent with the system without additional circumstances.
3. Section 82 paragraph 3 sentence 3 of the German Social Code, Book XII (SGB XII) constitutes a catch-all provision, an opening clause that gives the social welfare provider the opportunity to react flexibly to special circumstances of the individual case.
Source: juris.bundessocialgericht.de
1.3 – BSG, Judgment of April 25, 2018 (Case No.: B 8 SO 23/16 R):
Guiding principle Dr. Manfred Hammel
1. The special risks arising from the technical characteristics of the communication medium fax must not be passed on to the user of this medium.
This applies in particular to malfunctions of the court's receiving equipment.
2. By choosing a recognized transmission medium, properly using a functioning sending device, and correctly entering the recipient number, the user has done what is necessary to meet the deadline if he begins the transmission in a timely manner so that, under normal circumstances, the transmission process can be expected to be completed by the deadline.
3. If the authorized representative of a party to the proceedings, who has made arrangements and organizational measures to transmit a pleading by fax, recognizes that he can no longer transmit a pleading to the competent court in this manner within the prescribed time limit, then the fact that this pleading could have been transmitted in another way in a timely manner does not, in principle, preclude reinstatement to the previous status (§ 67 para. 1 SGG).
Source: juris.bundessocialgericht.de
1.4 – BSG, Judgment of March 1, 2018 (Case No.: B 8 SO 22/16 R):
Guiding principle Dr. Manfred Hammel
1. The registration under the residents' registration law is not relevant for determining the habitual residence within the meaning of Section 98 Paragraph 2 Sentence 2 SGB XII in conjunction with Section 30 Paragraph 3 Sentence 2 SGB I.
2. Insofar as persons in need are accommodated in decentralized locations, it is necessary for the establishment of an institution within the meaning of Section 13 Paragraph 2 of the German Social Code, Book XII (SGB XII), that this decentralized accommodation belongs to the premises of the institution and that the person in need of assistance is integrated into the premises of the institution's operator.
3. This is only the case if this accommodation is assigned to the legal and organizational sphere of the institution's operator in such a way that this accommodation can be considered part of the entire institution, and the institution's operator assumes overall responsibility for the daily life of the recipient of assistance from admission to discharge, in accordance with the applied concept.
4. Accommodation outside the facility must be equivalent to inpatient services provided within the facility.
Source: dejure.org
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Baden-Württemberg, Judgment of 15 May 2018 – L 9 AS 4118/17 – Appeal pending BSG B 14 AS 28/18 R
Basic income support for job seekers – integration benefit – integration administrative act – period of validity – “until further notice” – illegality – maximum period of 6 months
Are administrative acts replacing integration agreements still generally to be limited to six months even after the amendment of Section 15 of the German Social Code, Book II (SGB II) on August 1, 2016?
Principle (Juris)
1. The issuance of an integration administrative act without a time limit on its validity is not covered by the statutory authorization. Such a time limit is also not given by a validity "until further notice". (Para. 28)
2. Even after the amendment of Section 15 of the German Social Code, Book II (SGB II), an administrative act concerning integration must still, in principle, be limited to six months. (Paragraph 32)
Source: Juris
Legal tip:
see also Social Court Dortmund, Decision of 24 August 2018 – S 27 AS 430/18 ER; Social Court Dortmund, Decision of 10 January 2018 – S 27 AS 5836717 ER; Social Court Karlsruhe, Judgment of 12 October 2017, S 14 AS 1709/17; Social Court Berlin, Decision of 12 October 2017 – S 186 AS 11916/17 ER; Social Court Cologne, Judgment of 23 June 2017 – S 33 AS 691/17 and Social Court Nordhausen, Decision of 30 September 2016 – S 27 AS 1695/16 ER,
contra. LSG NSB, decision of 05.07.2018 – L 15 AS 172/18 B ER, as already decided by the Senate of 24 August 2017 – L 15 AS 160/17 B ER and of 23 May 2017 – L 15 AS 69/17 B ER; see also Lahne in: Hohm, GK-SGB II, § 15 Rn. 79, LSG Berlin-Brandenburg, decisions of 15.09.2017, L 14 AS 1469/17 B ER, LSG Berlin-Brandenburg, decision of 06.11.2017 – L 18 AS 2232/17 B ER, SG Nuremberg, decision of 10.04.2017 – S 22 AS 292/17 ER:
left open LSG NRW, decision of 18.01.2018 – L 6 AS 1329/17, LSG Berlin-Brandenburg, decision of 07.06.2018 – L 31 AS 671/18 B ER
2.2 – LSG Berlin-Brandenburg, decision of June 7, 2018 (Case No. L 31 AS 671/18 B ER):
Principle by Dr. Manfred Hammel
: 1. A mere application for review of the legality of a legally binding integration administrative act (§ 15 para. 3 sentence 3 SGB II), submitted pursuant to § 44 SGB X, does not eliminate the substantive legal force of this decision. The application obligations stipulated therein are binding.
2. A lack of personal capacity pursuant to Section 31 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book II (SGB II) in conjunction with Section 31 Paragraph 1 Sentence 2 of the SGB II on the part of an employable benefit recipient with regard to the preparation of applications to be submitted to employers cannot be assumed if it is perfectly possible for the applicant to send multi-page letters by fax and post to the social court in a large number of court proceedings without any problems, especially since online applications are also possible, which incur only minimal, if any, costs.
2.3 – Hamburg State Social Court, Judgment of 28 June 2018 – L 4 AS 282/16 – Appeal allowed
Review of the exercise of discretion – flawed exercise of discretion
Guiding principle (Editor):
On the legal question of whether further discretionary considerations should only be included in the justification of the reporting requirement when the “qualitative threshold” of more than 30%, at which point supplementary benefits in kind are to be provided in accordance with Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), has been reached.
Guiding principle (Editor):
In the case of a rapid succession of reporting requirements and sanctions derived from failure to report, job centers must exercise discretion and review the individual case and the circumstances such as employability and the integration-promoting nature of the renewed reporting requirement.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Dortmund, Decision of 24.08.2018 – S 27 AS 430/18 ER
Guiding principle of attorney Schulte-Bräucker
1. The unlimited validity of an integration agreement (EGV) renders the administrative act void.
According to the highest court rulings on Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II aF), an administrative act replacing an integration agreement is unlawful if the legally prescribed validity period is exceeded without any discretionary considerations (referring to the Federal Social Court (BSG), judgment of February 14, 2013 - B 14 AS 195/11 R).
2. Even under the new law, it can be assumed that the review period of six months, in the absence of discretionary exercise, is the maximum period for a unilaterally determined term in an integration administrative act (referring to LSG Bayern, L 16 AS 291/17 B ER)
3. This timeframe provides the person in need of assistance with a stable, reliable framework, but also guarantees, through continuous monitoring, that goals are not rigidly adhered to that prove to be unsuccessful (referring to BSG, judgment of 14.02.2013-B 14 AS 195/11 R).
Source: Lawyer Lars Schulte-Bräucker, Kalthofer Str. 27, 58640 Iserlohn-Kalthof
Current legal tip:
The opinion of the Lower Saxony-Bremen State Social Court (LSG Niedersachsen-Bremen), decision of July 5, 2018 – L 15 AS 172/18 B ER, is consistent with previous decisions of the Senate of August 24, 2017 – L 15 AS 160/17 B ER and of May 23, 2017 – L 15 AS 69/17 B ER; see also Lahne in: Hohm, GK-SGB II, § 15 para. 79; Nuremberg Social Court (SG Nürnberg), decision of April 10, 2017 – S 22 AS 292/17 ER;
similarly, the Baden-Württemberg State Social Court (LSG Baden-Württemberg), judgment of May 15, 2018 – L 9 AS 4118/17 – appeal pending before the Federal Social Court (BSG) B 14 AS 28/18 R.
3.2 – Social Court Berlin, Decision of 28 August 2018 – S 27 AS 8731/18 ER
The unlimited integration administrative act, a contribution by Attorney Kay Füßlein
If an integration agreement cannot be reached, it will be issued by administrative act. Quite often, the period of validity is specified as a start date, but not an end date; instead, it is stated as "until further notice".
Most legal precedents then assume that this is not possible, since it is now unclear how long the integration agreement will be valid.
In this case, the Job Center also issued an integration agreement by administrative act. An objection was filed, which has no suspensive effect (§ 39 SGB II). Since the objection has no suspensive effect, the applicant would have had to immediately begin a job application program (as she is over 55 years old and has already sent well over 1000 applications nationwide in recent years, this was not very convenient for her).
She was spared this for the time being.
The Berlin Social Court (SG Berlin) provisionally suspended the administrative act due to its indefinite duration by decision of August 28, 2018. (Decision of the Berlin Social Court of August 28, 2018 – S 27 AS 8731/18 ER).
Source: www.ra-fuesslein.de
Legal tip:
Opinion: Social Court Nuremberg, decision of April 10, 2017 – S 22 AS 292/17 ER
3.3 – Social Court Kiel, judgment of 5 February 2018 (file no.: S 37 AS 598/17):
Guiding principle Dr. Manfred Hammel
1. A qualified rent index generally provides a sufficient data basis for determining the upper rent limit.
2. The validity of the relevant data underlying the rent index is no longer guaranteed after a period of two years (see Section 22c Paragraph 2 SGB II and Section 558d Paragraph 2 BGB).
3. The data collected for a qualified rent index have only limited validity over time.
3.4 – SG Kiel, decision of 31.08.2018, S 31 AS 241/18 ER
On the necessity of a relocation within the meaning of Section 22 Paragraph 6 Sentence 2 of the German Social Code, Book II (SGB II), an article by attorney Helge Hildebrandt
Moving out of an apartment that does not comply with the requirements of Section 48 LBO SH is necessary within the meaning of Section 22 Paragraph 6 Sentence 2 SGB II.
Source: Sozialberatung-kiel.de
3.5 – Wiesbaden Social Court, Judgment of 24 November 2017 – S 16 AS 1131/15 – pending before the Hessian State Social Court – L 6 AS 145/18
Previous housing cost concept in Limburg-Weilburg has deficiencies
Guiding principle (Editor):
The concept for determining reasonable accommodation costs in the area of basic income support for job seekers, which was applied in the district of Limburg-Weilburg from 01.08.2014 to 30.06.2017, is not lawful.
Summary:
During the data collection for the concept, up to 93% of the data sets – depending on household size – were taken directly from SGB II (Social Code, Book II) data sets, while the proportion of SGB II households among all households in the district was only 6.8%. This does not accurately reflect the general housing market. If, like the Job Center, one then simultaneously sets limits according to which only 40% of the surveyed rents could be considered reasonable, this results in an inadmissible circular argument. Furthermore, there were insufficient vacant apartments available at the values assumed by the Job Center (at least for smaller benefit units), which is further evidence that the concept's values do not realistically reflect the housing market. Finally, the slight increase in the rent limits implemented on January 1, 2016, is also legally untenable. Since it was merely an index adjustment, the shortcomings of the original concept persist.
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – LSG Rheinland-Pfalz, decision of June 13, 2018 (file no.: L 4 SO 58/18 B ER):
Principle by Dr. Manfred Hammel
1. For the purposes of affirming the definition of an employee within the meaning of Article 45 TFEU, proof of the conclusion of an employment contract is not sufficient. It must also be proven that the non-German person in question actually performs services continuously according to instructions.
2. This does not apply to a person who, due to their multimorbidity and desolate general condition, is to be considered continuously incapable of working, i.e., is unable to perform even minor, insignificant services of economic value.
3. The exclusion of benefits applicable here pursuant to Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII) is also in conformity with European law. According to Section 23 Paragraph 3 Sentence 3 of the SGB XII, foreign nationals in need of assistance who are excluded from receiving assistance pursuant to Section 23 Paragraph 3 Sentence 1 of the SGB XII are granted (limited) bridging benefits until their departure.
4. According to Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII), further assistance is possible in individual cases due to special circumstances in order to overcome a particular hardship and to cover a temporary need.
5. This entitlement to bridging benefits and this hardship provision can adequately take into account any special circumstances due to illness.
6. The granting of assistance in case of illness pursuant to Section 48 of the German Social Code, Book XII (SGB XII) is therefore excluded.
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Detmold, Judgment of 14.08.2018 – S 2 SO 15/18
People in the entry or vocational training area of a workshop for disabled people
Guiding principle (Editor):
Even in the case of persons in the entry or vocational training area of a workshop for disabled people, a full permanent incapacity for work can be assumed (SG Augsburg, judgment of 16.02.2018 – S 8 SO 143/17).
Source: socialcourtsability.de
5.2 – SG Detmold, Decision of 23.08.2018 – S 11 SO 221/18 ER
Guiding principle (Editor):
Provisional school support for a child with diabetes.
Even if there is no long-term entitlement to support throughout the entire school career, integration assistance must be provided during the transition phase for school attendance, including breaks and other school events
Source: socialcourtsability.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Guiding principle by Dr. Manfred Hammel on the Higher Administrative Court of North Rhine-Westphalia, decision of 07.03.2018 – 9 E 129/18
Higher Administrative Court of North Rhine-Westphalia, decision of 7 March 2018 (file no.: 9 E 129/18):
Regarding the requirements for the accommodation of a homeless person who is dependent on the use of a wheelchair, and in particular the accessibility of the sanitary facilities in the accommodation.
Source: dejure.org
6.2 – Partners not receiving Hartz IV benefits are not required to provide information to the job center – (File No.: S 22 AS 1015/14)
Partners of someone receiving Hartz IV benefits are not required to fill out an application for social assistance themselves, even if they would be entitled to it. This was demonstrated in a case before the Gießen Social Court.
Continue: www.fr.de
Full text:
SG Gießen, Judgment of 23.02.2016 – S 22 AS 1015/14
Request for information from the job center to the partner of an employable benefit recipient
Guiding principle (Editor):
The partner of an employable person entitled to benefits is not obliged to fill out forms for the job center that are only aimed at those persons who themselves claim benefits to secure their livelihood.
Source: socialcourtsability.de
6.3 – Periods of irrevocable leave of absence are relevant for the amount of unemployment benefit – Federal Social Court (BSG), judgment of 30.08.2018 – B 11 AL 15/17 R.
The Federal Social Court (BSG) has ruled that the remuneration paid and accounted for during the leave of absence until the end of the employment relationship must be included as earned income when calculating unemployment benefit.
The decisive factor for calculating unemployment benefits within the meaning of Section 150 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), is the concept of employment in the sense of social insurance law. To the extent that decisions of the Senate might suggest a different understanding of this concept, the Senate no longer adheres to that understanding.
Source: Press release from the Federal Social Court (BSG) dated August 30, 2018: www.juris.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
