1. Decisions of the Federal Social Court of 12 September 2018 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 12.09.2018 – B 4 AS 33/17 R
No claim against the job center or the social welfare agency for reimbursement of the costs for his new Turkish passport as a subsidy.
Summary:
The costs for such a passport are generally included in the standard allowance according to Section 20 of the German Social Code, Book II (SGB II), as they were factored into its calculation based on the Income and Expenditure Survey (EVS) according to the RBEG 2011, which is still applicable in this case. According to the instructions underlying the EVS, Section 12, "Other Goods and Services," of the standard allowance calculation includes numerous other services, including the costs for identity cards and passports. When calculating monthly consumer spending, 25 cents were allocated for this item, based on the cost of an identity card, which is approximately €30. If the costs for foreign passports are higher, these are offset by internal adjustments due to the standardized system for calculating and paying the standard allowance. Furthermore, a loan can be applied for under Section 24 Paragraph 1 of the SGB II, which the plaintiff, however, did not request.
Source: www.bsg.bund.de
Note. See also:
Passport procurement costs for benefit recipients under SGB II by Claudius Voigt, GGUA
The question of whether the job center or the social welfare office must cover the sometimes extremely high costs of obtaining or renewing a foreign passport is fraught with uncertainty in practice. The legal basis for this is unclear, as is whether the cost coverage must be provided as a grant or a loan.
In principle, there are four options for those entitled to benefits under SGB II:
Assistance as an additional need pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), is provided by the Jobcenter. This assistance must be granted if it constitutes an "unavoidable, ongoing, and not merely one-off special need" that is not covered by the standard benefit rate. Since it is difficult to argue that passport procurement costs represent an ongoing need, this possibility is likely ruled out. Previous case law also rejects the assumption of costs under this provision.
Loans under Section 24 Paragraph 1 of the German Social Code, Book II (SGB II) are granted by the Jobcenter. These loans must be provided if a need is included in the standard allowance, the need is "unavoidable," but the money could not be saved. A classic example is a washing machine that was previously owned and then breaks down. The loan is repaid in installments of ten percent of the applicable standard allowance.
Assistance or loans under Section 73 of the German Social Code, Book XII (SGB XII) are available from the social welfare office. This "assistance in other life situations" can be provided if a need is not covered by the standard allowance and "if it justifies the use of public funds." Passport costs can fall under this category, and this SGB XII benefit, as a special social assistance benefit, is also available to individuals who are, in principle, eligible for benefits under the German Social Code, Book II (SGB II) (similar to long-term care assistance, integration assistance, etc.). The Lower Saxony State Social Court has recognized in two cases that Section 73 of the SGB XII is, in principle, applicable to passport costs (L 8 SO 234/16; L 7 AS 1794/15).
No one covers the costs of obtaining a passport. Those affected are passed back and forth between the social welfare office and the job center, and both authorities state that there is no legal basis for covering passport costs. This is clearly the most common administrative practice.
On September 12, the 4th Senate of the Federal Social Court, responsible for the German Social Code, Book II (SGB II), ruled on the issue of passport costs (B 4 AS 33/17 R). The written judgment is not yet available, only a summary of the hearing. This summary, however, is not particularly informative. According to the brief announcement, the Federal Social Court apparently ruled 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 of the German Social Code, Book II (SGB II) does not contain a preclusion rule.
Summary:
The regulation concerning the final decision in Section 41a Paragraph 3 of the German Social Code, Book II (SGB II), which was introduced on August 1, 2016, does not apply to benefit periods that ended before that date.
This follows initially from the wording of the transitional provision in Section 80 Paragraph 2 of the German Social Code, Book II (SGB II), which stipulates that for benefit periods ending before August 1, 2016, only Section 41a Paragraph 5 Sentence 1 of the SGB II applies, and that for benefit periods not yet ending before August 1, 2016, the entirety of Section 41a of the SGB II applies. In contrast, the potentially different interpretation of the explanatory memorandum in the draft bill for Section 41a of the SGB II (see Bundestag Printed Matter 18/8041, p. 62) is not decisive, especially since the replacement of Section 328 of the German Social Code, Book III (SGB III) by Section 41a of the SGB II entailed a significant change in the law, which, from the perspective of the protection of legitimate expectations, requires clear transitional provisions that are not to be interpreted to the detriment of benefit recipients in cases of doubt.
Insofar as Section 41a Paragraph 3 of the German Social Code, Book II (SGB II) is applicable, it does not contain a preclusion rule. Rather, when reviewing the initial decision regarding a final ruling within the framework of an objection procedure, it must also consider documents that are only submitted during the objection procedure. The wording of Section 41a Paragraph 3 SGB II does not suggest that it is a preclusion rule when compared with typical preclusion rules, such as Section 106a Paragraph 3 of the German Social Court Act (SGG).
Nothing to the contrary follows from the systematic context or the explanatory memorandum of the draft law. On the contrary, both indicate that Section 41a Paragraph 3 of the German Social Code, Book II (SGB II) is intended to specify the duty of cooperation of the parties involved, which corresponds to the principle of investigation by the authority pursuant to Section 20 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), pursuant to Section 21 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X).
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.
Guiding principle (Editor):
As the Federal Social Court (BSG) stated in its judgment of December 7, 2017 (B 14 AS 6/17 R), there is an entitlement to consideration of additional hot water needs beyond the hot water flat rate, insofar as the actual expenses incurred for hot water production are not fully covered by the hot water flat rate and are not unreasonable. The recognition of a deviating additional hot water need does not require separate consumption recording by technical devices – such as a water meter – but generally requires investigations and findings based thereon.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, Decision of 14.08.2018 – L 10 AS 854/18 B PKH
Sanction: The Higher Social Court (LSG) points to constitutional concerns regarding a 100% sanction for those under 25
Source: Attorney Dr. Lehmann, Cottbus: ra-jtlehmann.de
2.2 – Berlin-Brandenburg State Social Court, Decision of 20.08.2018 – L 18 AS 1372/18 B ER – legally
Guiding principle (Editor):
1. Regarding the assumption of electricity debts within the meaning of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) due to illness – risk of health impairments and an irreversible infringement of the applicant's physical integrity, which is under the special protection of the constitutional order (cf. Article 2 Paragraph 2 Sentence 1 of the Basic Law).
Source: socialcourtsability.de
2.3 – North Rhine-Westphalia State Social Court, decision of 27 June 2018 – L 12 AS 783/18 B ER – legally binding;
basic income support for job seekers – local jurisdiction of the basic income support provider – residence requirement under immigration law
Guiding principle (Editor)
1. Even in the case of a residence requirement pursuant to Section 12a Paragraph 1 of the Residence Act, the jurisdiction of the job center can only be established in the area where the applicants are required to reside (see also the decision of the Lower Saxony-Bremen State Social Court of 05.03.2018, L 15 AS 32/18 B).
2. The residency requirement has the effect of constituting a legal fact; it is binding on the provider of basic income support until it is lifted by the immigration authority or in the context of administrative court proceedings.
3. The applicant's general concerns regarding the residency requirement, which relate to the purposes of integration and human dignity in conjunction with the social welfare principle, cannot override the determination of the benefit provider pursuant to Section 36 of the German Social Code, Book II (see Hamburg Higher Social Court decision of May 8, 2018, L 4 AS 114/17 B ER).
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Berlin, Judgment of 10.08.2018 – S 37 AS 2967/16
Determining the appropriate costs of accommodation and heating – The values of the AV-Wohnen are inconclusive.
Guiding principle (Editor)
1. The table values of the Berlin rent index do not provide a representative picture of the housing market relevant for transfer recipients (2015 and 2016).
2. This does not give rise to any assumption that there is a significant amount of rentable housing available according to the weighted rent index data
3. And that a coherent concept cannot be developed solely on the basis of rent indices and other public sources on the Berlin housing market.
Source: socialcourtsability.de
Legal tip:
See also: The end of the qualified rent index as a basis for calculating accommodation and heating costs 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
More information: www.ra-fuesslein.de
Note: See also the guiding principle (Juris):
Coherent concept – rent index – unforeseeable price increases – availability check
1. The Berlin rent index tables do not provide a representative picture of the housing market relevant for recipients of transfer payments.
2. Under the conditions of a tight housing market (rent control), weighted rent index values do not justify the assumption that sufficient housing is available at these values.
3. “Unforeseeable price jumps” that require an update of the data used to develop a coherent concept refer to price shocks on the demand side; the term is to be interpreted in an economic, not a normative, sense.
4. Without checking availability, even using weighted rent index data for apartments in average locations, a coherent concept cannot be developed.
3.2 – Munich Social Court, decision of 08.08.2018 – S 46 AS 1477/15
Guiding principle (Editor)
1. The one-year period according to § 40 SGB II also applies to the conversion of loans into a grant.
2. Because the conversion of a loan into a grant involves the provision of social benefits and not the recovery of a previously granted social benefit, the one-year time limit applies.
Source: socialcourtsability.de
3.3 – Social Court Gotha, judgment of August 17, 2018 (Case No.: S 26 AS 3971/17):
Guiding principle by Dr. Manfred Hammel
: 1. The possession of an internet-enabled PC/laptop along with necessary accessories and services (cost: EUR 600) is indispensable for eighth-grade students of a secondary school within the meaning of § 21 para. 6 SGB II. Without this tool, students are largely unable to comply with the school's organizational requirements today.
2. This also constitutes an ongoing need within the meaning of Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II). Although the computer/laptop is only paid for once, it fulfills an ongoing need, namely the ability to attend school properly and without falling behind in class. This is a process that continues over several years.
3.4 – Social Court Cottbus, judgment of July 26, 2018 (Case No.: S 31 AS 62/17):
Guiding principle by Dr. Manfred Hammel:
1. The determination of the comparison area for specifying the appropriateness of housing costs is not based solely on objective criteria. This procedure is not bound by city or district boundaries. It cannot be schematically based on the territory of the responsible municipal authority or on the constitutional definition of a municipality.
2. It is not excluded that municipalities in the immediate vicinity within the district are also connected to the city in terms of infrastructure and transport in such a way that an overall homogeneous living and residential area results.
3. Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area.
4. A comprehensible definition of the subject of observation is required (what type of apartments / if applicable, differentiation according to apartment standard, gross or net rent, differentiation according to apartment size). Specific details regarding the observation period must be provided. The method of data collection and the sources of information must be identified. The scope of the collected data must be representative. The validity of the data collection and adherence to recognized mathematical and statistical principles of data analysis are required. Finally, information on the conclusions drawn (upper limit or cap) is necessary.
3.5 – Social Court Cottbus, judgment of July 19, 2018 (Case No.: S 31 AS 1237/15):
Guiding principle Dr. Manfred Hammel
1. An assessment of housing needs commissioned by the job center three years ago in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), can no longer be used to determine the appropriateness of housing costs.
2. A cap on housing costs based on a sound concept must not be in place indefinitely. The limits of what is considered reasonable are also subject to actual market changes and must be adjusted periodically.
3. It cannot be assumed that data older than three years can still provide a timely and realistic representation of the current price per square meter (see also Section 22c Paragraph 2 of the German Social Code, Book II).
4. Qualified rent indices must also be adapted to updated data every two years (§§ 558c para. 3 and 538d para. 2 sentence 1 BGB) and newly created every four years (§ 558d para. 2 sentence 3 BGB).
4. Decisions of the social courts on employment promotion (SGB III)
4.1 – Regensburg Social Court, Judgment of 05.06.2018 – S 12 AL 265/16
Guiding principle (Editor)
: 1. No entitlement to unemployment benefits in Germany if prior employment was exclusively in Switzerland.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Münster, Judgment of 28 June 2018 – S 11 SO 176/16
Guiding principle (editor):
No social assistance if self-help is reasonably possible.
Guiding principle (Editor)
1. A citizen is not entitled to tax-funded social assistance if he can (re)gain assets by terminating a private funeral pre-arrangement contract concluded with a funeral home and the subsequent funeral is secured by other means.
Source: socialcourtsability.de
6. Decisions of the State Social Courts and Social Courts on Asylum Law
6.1 – LSG Hessen, decision of July 11, 2018 (file no.: L 4 AY 9/18 B ER):
Guiding principle Dr. Manfred Hammel
1. In consideration of Art. 1 para. 1 GG in conjunction with Art. 20 para. 1 GG, a constitutionally compliant interpretation of § 6 para. 1 sentence 1 AsylbLG is required in such a way that the criteria of indispensability and safeguarding of health are to be interpreted broadly.
2. Sufficient is the necessity to safeguard health in the sense of a need for treatment that goes beyond mere minor illnesses.
3. At least for persons who are not only staying in the Federal Republic of Germany for a short time, medical care with all services according to §§ 47 ff. SGB XII or according to SGB V is required.
4. Since, according to Section 4 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), the treatment of diseases with a purely chronic course without acute illnesses is excluded, the application of Section 6 Paragraph 1 Sentence 1 of the AsylbLG may be considered here.
5. In principle, the local level of benefits for health care as defined by the legislator in accordance with the German Social Code, Book XII (SGB XII) pursuant to Sections 47 et seq. SGB XII or in accordance with the German Social Code, Book V (SGB V) (Statutory Health Insurance), is to be ensured as a minimum standard of living, unless the legislature has identified and regulated special reduced needs under benefit law.
6. Pursuant to Section 6 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), the level of benefits equivalent to the German Social Code, Book XII (SGB XII) and Book V (SGB V) can be established where there is no reliable evidence that the need for subsistence-related benefits differs significantly from that of other needy persons in the Federal Republic of Germany.
7. Antiviral therapy for chronic hepatitis C falls under the entitlement to the provision of medicinal products pursuant to Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book V (SGB V) or Section 48 of the German Social Code, Book XII (SGB XII).
6.2 – Regensburg Social Court, Judgment of 30 May 2018 – S 7 AY 4/17
For the granting of analogous benefits according to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG).
The plaintiff has abused his rights by influencing the duration of his stay in the Federal Republic of Germany and is therefore excluded from benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG).
Guiding principle (Editor)
1. If a person entitled to benefits seeks sanctuary in a church to prevent the enforcement of measures terminating their residence, this justifies the assumption of an abuse of rights pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (similarly, Social Court Lüneburg, judgment of 22 February 2018 – S 26 AY 26/17; contra, Social Court Stade, judgment of 17 March 2016 – S 19 AY 1/16 ER).
Source: socialcourtsability.de
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Assistance for care despite proceeds from forced auction – Baden-Württemberg State Social Court, judgment of 19 April 2018 – L 7 SO 4981/14
The State Social Court (LSG) of Baden-Württemberg has ruled regarding the granting of assistance for care and substantial proceeds from forced auctions.
The parties disputed the assumption of costs incurred for the inpatient care of a deceased person up to their death. An application submitted to the district for benefits to secure subsistence under the Second Book of the German Social Code (SGB II) was ultimately granted only in the form of a loan due to existing assets.
Continue at: immobilienpool.de
7.2 – Federal Court of Justice (BGH) ruling on the duty of social welfare authorities to provide advice (§ 14 SGB I), an article by Herbert Masslau,
further information: www.herbertmasslau.de
7.3 – Note on: ECJ, Judgment of 21 March 2018 – C-551/16
Author: Nicole Behrend, Judge at the Federal Social Court
Can unemployment benefits be paid for longer than three months when seeking employment in another EU member state?
The guiding principle
of Article 64(1)(c) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (juris: EC Regulation 883/2004) must be interpreted as not precluding a national measure such as that at issue in the main proceedings, which requires the competent institution to reject, in principle, any application 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 would lead to an unreasonable result.
Continue reading on Juris: www.juris.de
7.4 – Start-up Grant – Obligation to Re-apply When Using Standard Text Modules, an article by attorney
Raik Pentzek, ETL Rechtsanwälte GmbH.
As expected, the start-up grant under the German Social Code, Book III (SGB III), has raised a number of legal questions since the reform of the legal regulations. An important question was whether the priority of placement in dependent employment could be considered a central argument for rejecting an application. The courts have since recognized the priority of placement in dependent employment as a valid argument. However, this must not lead to the application being rejected using a standard text module with a blanket reference to the priority of placement.
Regarding the question of the balancing requirements when rejecting an application for a start-up grant, the Berlin-Brandenburg State Social Court (LSG) ruled as follows in its judgment of 22.08.2018, L 18 AL 9/17:
More information: www.anwalt.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
