1. Decisions of the Federal Social Court of September 12, 2018 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of
09/12/2018 - B 4 AS 33/17 R Still entitled to the job center or the social welfare provider to cover the costs of his new Turkish passport as a subsidy.
Short version:
The costs for such a passport are generally included in the standard requirement according to Section 20 SGB II, because they were included in its determination based on the income and consumption sample (EVS) according to the RBEG 2011, which is still applicable in this case. According to the filling instructions on which the EVS is based, department 12 “Other goods and services” of the standard needs assessment includes, among other things, numerous other services, including the costs for ID cards and passports. When determining the monthly consumption expenditure, 25 cents were taken into account for this item in view of the cost of an identity card of around 30 euros. If the costs for foreign passports are higher, these must be offset by internal compensation due to the flat-rate system of determining and paying standard requirements. Furthermore, a loan can be applied for in accordance with Section 24 Paragraph 1 SGB II, which the plaintiff did not request.
Source: www.bsg.bund.de
A notice.
Also included: Passport procurement costs for those entitled to benefits according to SGB II by Claudius Voigt, GGUA
The question of whether the job center or the social welfare office has to cover the sometimes extremely high costs of obtaining or extending a foreign passport is associated with great uncertainty in consulting practice. The legal basis for this is unclear and it is also unclear whether the costs must be covered as a grant or as a loan.
In principle, there are four options for those entitled to benefits under SGB II:
Aid as additional needs in accordance with Section 21 Paragraph 6 SGB II from the job center. This must be provided if it is an “indispensable, ongoing, not just one-off special need” that is not covered by the standard rate. Since it is difficult to argue that the passport procurement costs are an ongoing need, this option is probably ruled out. Previous case law also rejects the assumption of costs according to this standard.
Loan according to Section 24 Paragraph 1 SGB II from the job center. This must be provided if a need is included in the standard rate, the need is “unavoidable” but the money could not be saved. A classic example of this is the washing machine that was already there before and then breaks. The loan is paid off at ten percent of the applicable standard rate.
Aid or loan according to Section 73 SGB XII from the social welfare office.
This “help in other life situations” can be provided if a need is not included in the standard rate and “if it justifies the use of public resources”. This can also include passport costs and this SGB The Lower Saxony State Social Court has recognized in two proceedings that Section 73 SGB XII applies in principle to passport costs (L 8 SO 234/16; L 7 AS 1794/15). Nobody covers the costs of obtaining a passport. Those affected are sent back and forth between the social welfare office and the job center and both authorities say there is no legal basis for covering the passport procurement costs. This is clearly the most common regulatory decision-making practice.
On September 12th, the 4th Senate of the Federal Social Court, which is responsible for SGB II, decided on the question of passport costs (B 4 AS 33/17 R). The written judgment is not yet available, just a report. However, this is not particularly illuminating. According to the brief announcement, the BSG has apparently decided that
continue to the source: ggua.de
1.2 – BSG, judgment of 09/12/2018 – B 14 AS 7/18 R, B 14 AS 4/18 R, B 4 AS 39/17 R
Section 41a Paragraph 3 SGB II does not contain any preclusion regulations.
Short version:
The regulation on the final decision in Section 41a Paragraph 3 SGB II, introduced on August 1, 2016, does not apply to approval periods that ended before this date.
This follows initially from the wording of the transitional regulation in Section 80 Paragraph 2 SGB II, which only stipulates that Section 41a Paragraph 5 Sentence 1 SGB II applies to approval periods that ended before August 1, 2016 and only to approval periods that did not end before August 1, 2016 the validity of the entire § 41a SGB II. In contrast, the reasoning in the draft bill for § 41a SGB II (see BT-Drs 18/8041 S 62), which may be understood differently, is not relevant, especially since the replacement of § 328 SGB III by § 41a SGB II was accompanied by a significant change in the law, which requires clear transitional provisions from the point of view of protecting legitimate expectations, which, in case of doubt, are not to be interpreted to the detriment of those entitled to benefits.
Insofar as Section 41a Paragraph 3 SGB II applies, it does not contain any preclusion regulations. Rather, when reviewing the initial decision regarding a final decision in the context of an objection procedure, he must also take into account documents that are only presented in the objection procedure. The fact that Section 41a Paragraph 3 SGB II is a pre-exclusion provision cannot be deduced from its wording if it is compared with typical pre-exclusion provisions, such as Section 106a Paragraph 3 SGG.
Nothing else follows from the systematic connections and the justification of the draft law. Rather, it can be seen from both that Section 41a Paragraph 3 SGB II is intended to serve to concretize the obligation of those involved to cooperate in accordance with Section 21 Paragraph 2 Sentence 1 SGB
Source: www.bsg.bund.de
1.3 – BSG, judgment of September 12, 2018 – B 14 AS 45/17 R
A higher demand for heating electricity does not require a technical determination of consumption.
Guidance sentence (editor)
As the BSG stated in its judgment of December 7, 2017 (B 14 AS 6/17 R), there is a right to take into account additional hot water requirements beyond the hot water flat rate, to the extent that the actual expenses for hot water production are not covered by the hot water flat rate are fully covered and they are not unreasonable. The recognition of a different additional hot water requirement does not require separate consumption recording through technical devices - such as a consumption meter - but rather requires investigations and findings based on this.
Source: www.bsg.bund.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - LSG Berlin-Brandenburg, decision of. August 14, 2018 – L 10 AS 854/18 B PKH
Sanction: LSG points out constitutional concerns about a 100% sanction for people under 25
Source: Attorney Dr. Lehmann, Cottbus: ra-jtlehmann.de
2.2 – Berlin-Brandenburg State Social Court, decision v.
August 20, 2018 - L 18 AS 1372/18 B ER - legally binding Guidance sentence (editor)
1. On the assumption of electricity debts i. S.d. § 22 Para. 8 SGB II for reasons of illness - risk of health impairments and an irreversible interference with the physical integrity of the applicant, which is under the special protection of the constitutional order (see Article 2 Para. 2 Sentence 1 of the Basic Law).
Source: socialcourtsability.de
2.3 – State Social Court of North Rhine-Westphalia, decision v.
June 27, 2018 - L 12 AS 783/18 B ER - legally binding basic security for job seekers - local responsibility of the basic security provider - residence requirement under immigration law
Guidance sentence (editor)
1. Even with a residence requirement in accordance with Section 12a Paragraph 1 of the Residence Act, the responsibility of the job center can only be established in the area in which the applicants have to reside (cf. also LSG Niedersachsen-Bremen decision of March 5, 2018, L 15 AS 32/18 B).
2. The residence requirement has an effect on the offense; it is binding for the basic security provider until it is revoked by the immigration authorities or in the context of an administrative court procedure.
3. The general concerns raised by the applicant about the residence requirement, which concern the purposes of integration and human dignity in connection with the welfare state principle, cannot affect the determination of the service provider according to Section 36 SGB II (see LSG Hamburg decision of May 8, 2018 , L 4 AS 114/17 B ER).
Source: socialcourtsability.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – Berlin Social Court, judgment of August 10, 2018 – S 37 AS 2967/16
Determination of the appropriate costs of accommodation and heating – The values of AV-Wohnen are not conclusive.
Guidance sentence (editor)
1. The table values of the Berlin rent index do not provide a representative representation of the housing market relevant for transfer benefit recipients (2015 and 2016).
2. This does not give rise to any assumption that there is a significant number of rentable living spaces based on the weighted rent index data
3. And that no coherent concept can be developed solely on the basis of the rent index and other public sources on the Berlin housing market.
Source: socialcourtsability.de
Legal tip:
S. a. The end of the qualified rent index as a basis for calculating the costs of accommodation and heating in Berlin? – Judgment of the Berlin-Brandenburg State Social Court of January 31, 2018 – L 32 AS 1223/15 – An article by Attorney Kay Füßlein, Berlin
further: www.ra-fuesslein.de
Note: S.a.
Guiding principle (Juris) Coherent concept - rent index - unforeseeable price jumps - availability check
1. The Berlin table rent indexes do not provide a representative picture of the housing market relevant to transfer benefit recipients.
2. Under the conditions of a tight housing market (rent cap), weighted rent index values do not give rise to the assumption that there is sufficient available living space at these values.
3. “Unpredictable price fluctuations” that require an update of the data used to develop a coherent approach are understood to mean price shocks on the demand side; the term is to be interpreted economically, not normatively.
4. Without an availability check, no coherent concept can be developed for apartments in medium locations, even using weighted rent index data.
3.2 – Munich Social Court, decision v. August 8, 2018 – S 46 AS 1477/15
Guidance sentence (editor)
1. The one-year deadline according to Section 40 SGB II also applies when converting a loan into a grant.
2. Because the conversion of loans into a grant involves the provision of social benefits and not a reclaim of a previously granted social benefit, the one-year period applies.
Source: socialcourtsability.de
3.3 - Gotha Social Court, judgment of August 17, 2018 (ref.: S 26 AS 3971/17):
Principle Dr.
Manfred Hammel 1. The possession of an internet-capable PC/laptop along with the necessary accessories and services (costs: EUR 600) is essential for students in the eighth grade of a secondary school within the meaning of Section 21 Paragraph 6 SGB II. Students are without this aid To a large extent, following the school's organizational guidelines is no longer possible.
2. This is also an ongoing need within the meaning of Section 21 Paragraph 6 Sentence 1 SGB II. The computer/laptop is only paid for once, but it fulfills an ongoing need, namely to attend school in an appropriate manner without being “left behind” as a student in class. A process that lasts for several years.
3.4 – Cottbus Social Court, judgment of July 26, 2018 (ref.: S 31 AS 62/17):
Principle Dr.
Manfred Hammel 1. The determination of the comparison area to specify the appropriateness of accommodation costs is not only based on objective criteria. This approach is not bound to city or district boundaries. It cannot be based here schematically on the area of the responsible municipal authority or on the municipal constitutional concept of municipality.
2. It is not excluded that communities in the immediate vicinity in the district are also connected to the city in terms of infrastructure and transport in such a way that an overall homogeneous living and living area results.
3. Data collection may only take place in the precisely defined area and must take place across the entire comparison area.
4. A comprehensible definition of the object of observation is required here (what type of apartments / if necessary differentiation according to the standard of the apartments, gross or net rent, differentiation according to the size of the apartment). Specific information about the observation period must be provided. The method of data collection and the sources of knowledge must be determined. The scope of the data collected must be representative. Validity of data collection and compliance with recognized mathematical-statistical principles of data analysis are required. Ultimately, information about the conclusions drawn (upper limit or capping limit) is required.
3.5 – Cottbus Social Court, judgment of July 19, 2018 (ref.: S 31 AS 1237/15):
Principle Dr.
Manfred Hammel 1. A determination of accommodation needs within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II, which was commissioned by the job center three years ago, can currently no longer be used to determine the appropriateness of accommodation costs.
2. A cap on the costs of accommodation based on a coherent concept may not be imposed for an indefinite period of time. The appropriateness limits are also subject to actual market changes and must be adjusted regularly.
3. It cannot be assumed that data that is more than three years old can still represent a timely and realistic representation of the current price per square meter (see also Section 22c Para. 2 SGB II).
4. Qualified rent indexes must also be adjusted to updated data every two years (Sections 558c Paragraph 3 and 538d Paragraph 2 Sentence 1 BGB) and recreated every four years (Section 558d Paragraph 2 Sentence 3 BGB).
4. Decisions of the social courts on employment promotion (SGB III)
4.1 – Regensburg Social Court, judgment of June 5, 2018 – S 12 AL 265/16
Guidance sentence (editor)
1. No entitlement to unemployment benefit in Germany if previous employment was exclusively in Switzerland.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Münster Social Court, judgment of June 28, 2018 – S 11 SO 176/16
Guidance sentence (editor)
No social assistance with reasonable self-help.
Guiding principle (editor)
1. A citizen is not entitled to tax-financed social assistance if he can (re)gain assets by terminating a private funeral provision contract concluded with a funeral home and the later burial is otherwise secured.
Source: socialcourtsability.de
6. Decisions of the state social courts and social courts on asylum law
6.1 – LSG Hessen, resolution of July 11, 2018 (ref.: L 4 AY 9/18 B ER):
Principle Dr.
Manfred Hammel 1. Taking into account Article 1 Paragraph 1 GG in conjunction with Article 20 Paragraph 1 GG, a constitutional interpretation of Section 6 Paragraph 1 Sentence 1 AsylbLG is required in such a way that the elements of the offense of indispensability and security of health are to be interpreted broadly.
2. The necessity to ensure health in the sense of a need for treatment that goes beyond mere minor illnesses is sufficient.
3. At least for people who are not only staying in the Federal Republic of Germany for a short time, medical care with all services in accordance with Sections 47 ff. SGB XII or SGB V is required.
4. Since, according to Section 4 Paragraph 1 Sentence 1 AsylbLG, the treatment of illnesses with a merely chronic course without acute illness states is excluded, application of Section 6 Paragraph 1 Sentence 1 AsylbLG can be considered here.
5. In principle, the local level of health assistance defined by the legislature in accordance with SGB XII in Sections 47 ff. SGB has regulated.
6. Through Section 6 Paragraph 1 Sentence 1 AsylbLG, the level of benefits equivalent to SGB
7. Antiviral therapy for chronic hepatitis C is subject to the right to the supply of medication in accordance with Section 31 Paragraph 1 Sentence 1 SGB V or Section 48 SGB XII.
6.2 – Regensburg Social Court, judgment of May 30, 2018 – S 7 AY 4/17
For the granting of analogous benefits in accordance with Section 2 of the Asylum Seekers Benefits Act (AsylbLG).
The plaintiff improperly influenced the duration of his stay in the Federal Republic of Germany and is therefore excluded from benefits under Section 2 AsylbLG.
Guidance sentence (editor)
1. If a person entitled to benefits goes to church asylum in order to prevent the implementation of measures terminating their stay, this justifies the assumption of abusive behavior according to Section 2 Paragraph 1 AsylbLG (also SG Lüneburg from February 22, 2018 - S 26 AY 26/17 ; aA SG Stade from March 17, 2016 – S 19 AY 1/16 ER).
Source: socialcourtsability.de
7. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
7.1 - Help with care despite proceeds from compulsory auction - LSG Baden-Württemberg, judgment of. April 19, 2018 – L 7 SO 4981/14
The State Social Court (LSG) of Baden-Württemberg has decided with regard to the granting of assistance for care and significant proceeds from compulsory auctions.
The parties involved disputed over the assumption of costs incurred for the inpatient accommodation of a deceased person until his death. An application submitted to the district for benefits to secure a living in accordance with Book II of the Social Code (SGB II) was then only approved in the form of a loan-based benefit approval due to existing assets.
further: immobilienpool.de
7.2 – BGH on the duty of the social authorities to provide advice (§ 14 SGB I), a contribution by Herbert Masslau
: www.herbertmasslau.de
7.3 - Note on: ECJ, judgment of March 21, 2018 - C-551/16
Author: Nicole Behrend, Ri'inBSG
Payment of unemployment benefits when looking for work in another EU member state for longer than three months?
Guidance sentence
Art. 64 paragraph 1 letter c of Regulation (EC) No. 883/2004 of the European Parliament and of the Council of April 29, 2004 on the coordination of social security systems (juris: EGV 883/2004) is to be interpreted as meaning that it does not preclude a national measure such as that at issue in the main proceedings, which requires the competent institution to reject, in principle, any request for an extension of the period for exporting unemployment benefits beyond three months, unless, in the opinion of that institution, the Rejection of the application may lead to an inappropriate result.
continue on Juris: www.juris.de
7.4 - Start-up grant - Obligation to make a new decision when using text modules, a contribution from lawyer
Raik Pentzek, ETL Rechtsanwälte GmbH
The start-up grant according to SGB III has, as expected, raised a number of legal questions since the legal regulation was redesigned. An important question was whether the priority of placement in dependent employment could be considered a central argument for rejecting the application. In the meantime, the priority of placement in dependent employment has been recognized by the courts as an objective argument. However, this must not result in the application being rejected using a text module with a blanket reference to the priority of placement.
On the question of the balancing requirements when rejecting the application for a start-up grant, the Berlin-Brandenburg State Social Court (LSG) decided as follows in its judgment of August 22, 2018, L 18 AL 9/17:
further: www.anwalt.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
