1. Decisions of the Federal Social Court of 12 April 2018 on basic income support for job seekers (SGB II)
1.1 – Federal Social Court (BSG), Decision of 12 April 2018, Case No.: B 14 SF 1/18 R
Admissibility of legal recourse to the social courts in a dispute concerning payment of a security deposit claim arising from a guarantee issued by the job center to the landlord of a recipient of benefits to secure subsistence under the German Social Code, Book II (SGB II).
Further information: www.jurion.de
See also Uwe Berlit in the info also 4/2018:
Legal recourse for an action for a guarantee declaration by the benefit provider for claims arising from a tenancy agreement
(§ 22 para. 6 SGB II; § 13 GVG; § 51 para. 1 no. 4a SGG; §§ 768 ff. BGB) – Decision of 12 April 2018 – B 14 SF 1/18 R
The social security agency had issued a (joint and several) guarantee to a landlord for a security deposit claim arising from the tenant's lease, clarifying that this guarantee did not constitute an admission of liability to the lease. Due to the nature of the legal relationship from which the claim is derived, legal recourse for any claims arising from this guarantee is (solely) available through the ordinary courts. The agency's independent civil law declaration and the resulting independent guarantee obligation to the landlord are legally separate from the social security relationship between the defendant and the tenant. Because of the guarantee's legal independence, the Federal Social Court (BSG) does not rule on jurisdiction for legal disputes between landlords and job centers based on cost assumption declarations or direct payments under Section 22 Paragraph 7 of the German Social Code, Book II (SGB II).
Source: info also 4/2018: www.info-also.nomos.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, Judgment of 07.06.2018 – L 10 AS 360/16 – legally binding
Social law administrative procedure – reimbursement of costs in preliminary proceedings – entitlement to exemption – statute of limitations – same matter – intrinsic connection
Principle (Juris)
1. The authority cannot oppose a claim for exemption from costs by a legal representative on the grounds that the client should have raised the defense of limitation against him.
2. If a lawyer is involved in two social law administrative proceedings, one concerning the cancellation of benefits and the other concerning the rejection of continued benefits for the subsequent benefit period, two matters within the meaning of Section 15 Paragraph 2 of the Lawyers' Fees Act (RVG) may exist.
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 22 August 2018 – L 18 AS 267/18
Standard allowance for single benefit recipients.
Guiding principle (Editor):
Standard benefit rates for single benefit recipients in 2016 and 2017 are constitutional (see also Bavarian State Social Court, decision of August 23, 2017 – L 11 AS 529/17 NZB).
Source: socialcourtsability.de
2.3 – Berlin-Brandenburg State Social Court, decision of 06.09.2018 – L 31 AS 1548/18 B ER – legally
binding. The repayment of the loan is subordinate in relation to covering living expenses.
Guiding principle (Editor):
1. A self-employed person's income must, of course, be used to cover their living expenses and not to repay a bank loan. It is not the state that, through basic income support under the German Social Code, Book II (SGB II), is obligated to cover the applicant's debts to the bank.
2. Should the applicant actually be unable to repay his overdraft from his car dealership, he is left with the option of (personal) insolvency, with the consequence that the credit institution in question will likely have to write off the loan funds granted. Repayment of these loan funds by the state treasury through the assumption of the applicant's ongoing living expenses is not an option.
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision of 19 September 2018 – L 34 AS 1650/18 B ER – legally binding.
Denial of benefits due to lack of cooperation in clarifying employability by a (presumably) mentally ill person – necessary discretionary considerations.
A refusal of subsistence benefits (here unemployment benefit II) according to § 66 SGB I is generally possible.
Guiding principle (Editor)
1. In cases where a complete denial of benefits is to be made due to a lack of cooperation in clarifying possible incapacity for work as a result of a suspected mental illness, the discretionary considerations must address why a complete denial of the subsistence minimum is appropriate and proportionate in this case (see also: BayLSG, decision of 31.08.2012 – L 7 AS 601/12 B ER), which did not happen here.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Bayreuth, decision of September 25, 2018 (file no.: S 17 AS 567/18 ER):
Guiding principle Dr. Manfred Hammel
1. If an integration agreement (EGV – § 15 para. 2 sentence 1 SGB II) has been effectively concluded, then the job center cannot replace this public-law contract by a unilateral issuance of an integration administrative act (§ 15 para. 3 sentence 3 SGB II) without prior notice of termination.
2. Until a consensual amendment or termination of an EGV, all parties are bound by this public-law contract.
3. The refusal to fulfill obligations arising from an integration agreement presupposes a duty that is sufficiently defined from the perspective of the benefit recipient within the meaning of Section 33 Paragraph 1 of the German Social Code, Book X (SGB X).
4. Any ambiguities in this matter shall always be construed against the SGB II agency responsible for the sanction decision.
5. A formulation of application obligations also requires a regulation specifying when these self-initiated efforts must be proven by the benefit recipient.
6. Due to the lack of deadlines for submitting applications in the EGV (Integration Agreement), considering the applicant's statement that he had made a sufficient number of applications, and further considering that the EGV was to be continued at the initiative of the SGB II provider without the job center following the formally correct procedure (termination of the previous EGV after a further request from the applicant to submit the signed new agreement), it cannot be assumed that the applicant culpably breached his obligations under Section 31 Paragraph 1 Sentence 1 No. 1 SGB II.
3.2 – Social Court Berlin, decision of October 1, 2018 (Case No.: S 123 AS 9514/18 ER):
Principle by Dr. Manfred Hammel
1. On the incorrectness within the meaning of Section 66 Paragraph 2 Sentence 1 of the Social Court Act (SGG) of a legal remedy instruction attached to a revocation notice by a job center.
2. A job center must also inform the recipient about the electronic form regulated in Section 84 of the Social Courts Act 2018 in accordance with Section 36a Paragraph 2 of the Social Code, Book I, if the social security provider under Book II of the German Social Code has opened access for the transmission of electronic documents via its electronic court and administrative mailbox (Section 36a Paragraph 1 of the Social Code, Book I).
Source: Attorney Kay Füßlein, Berlin: The legal remedies information provided by Job Centers after January 1, 2018: www.ra-fuesslein.de
3.3 – SG Karlsruhe, judgment of June 29, 2018 – S 11 AS 1811/17 (legally binding)
Failure to comply with the duty to cooperate in social court proceedings can have adverse consequences for the plaintiff.
Source: www.socialcourt-karlsruhe.de
4. Decisions of the State Social Courts on Employment Promotion (SGB III)
4.1 – Saxon State Social Court, Judgment of 20 April 2017 — L 3 AL 11/15
Calculation of unemployment benefits after Federal Voluntary Service
Editorial principle:
When determining the assessment period, periods of federal voluntary service are generally disregarded pursuant to Section 150 Paragraph 2 Sentence 1 No. 2 of the German Social Code, Book III (SGB III), even if income subject to social security contributions (here: pursuant to Section 344 Paragraph 2 of the German Social Code, Book III (SGB III)) is earned at the same time.
Source: info also 4/2018
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Berlin-Brandenburg State Social Court, Judgment of 16 August 2018 – L 23 SO 286/16
Employment promotion allowance is not considered remuneration within the meaning of Section 82 Paragraph 3 Sentence 2 of the German Social Code, Book XII (SGB XII).
Clarification regarding L 23 SO 1094/05, judgment of September 28, 2006.
Calculation of the social assistance needs of a person in need of assistance who is employed in a workshop for disabled people |
Guiding principle (Editor)
1. The AFÖG, which the workshops receive from the rehabilitation providers pursuant to Section 43 Sentence 1 of the German Social Code, Book IX (SGB IX), is not considered remuneration within the meaning of Section 82 Paragraph 3 Sentence 2 of the German Social Code, Book XII (SGB XII) (Social Court Aachen, Judgment of May 19, 2015 – S 20 SO 36/15; Higher Social Court of Lower Saxony-Bremen, Judgment of July 29, 2014 – L 8 SO 212/11; Thuringian Higher Social Court, Judgment of September 9, 2015, L 8 SO 273/13).
2. The AFÖG (Federal Training Assistance Act) does not count as remuneration within the meaning of Section 138 Paragraph 2 of the German Social Code, Book IX (basic amount equal to the training allowance plus a performance-related increase), but is instead paid by the responsible rehabilitation provider to the workshop in accordance with Section 43 of the German Social Code, Book IX, and passed on by the workshop to the employee as a special wage incentive.
Source: socialcourtsability.de
6. Decisions of the State Social Courts and Social Courts on Asylum Law
6.1 – Bavarian State Social Court, decision of 17 September 2018 – L 8 AY 13/18 B ER
A restriction of entitlement pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) requires conduct contrary to obligations on the part of the beneficiary.
Guiding principle (Editor):
The Senate considers a teleological reduction of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) to be necessary for constitutional reasons.
Source: socialcourtsability.de
Note: Juris principle:
Benefit reduction requires specific misconduct on the part of the benefit recipient.
1. Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted restrictively in view of the fundamental right to a dignified minimum standard of living under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the Basic Law (GG).
2. If, according to its wording, Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) refers to the restriction of entitlement only on membership of a specific group of persons, this is constitutionally questionable.
3. Therefore, for the restriction of entitlement pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), it must also be required, by way of a norm-preserving teleological reduction, that the beneficiary is guilty of conduct contrary to his obligations.
4. Reprehensible misconduct can also consist of remaining in Germany. However, this requires that the person entitled to benefits is already aware of the international protection or right of residence granted to them in another member state of the European Union or a third country participating in the distribution mechanism within the meaning of Section 1a Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) for other reasons.
5. If the person entitled to benefits first becomes aware of this through a negative decision from the Federal Office for Migration and Refugees (BAMF), which orders them to leave the country, the person entitled to benefits can only be accused of misconduct from the time the decision becomes legally binding or – in the case of an appeal – from the unappealable conclusion of the asylum procedure, due to the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law.
6.2 – SG Berlin, decision of 26.06.2018 – S 95 AY 91/18 ER
Trainees generally have no supplementary entitlement to social assistance in addition to benefits under the Federal Training Assistance Act (BAföG). A trainee can earn extra money by subletting their couch or balcony. This is sufficient for a reasonable standard of living, according to the Berlin Social Court (decision of June 26, 2018, case no. S 95 AY 91/18 ER).
Earning extra income – even without a work permit?
The Berlin Social Court rejected the application for an interim injunction. According to Section 22 Paragraph 1 Sentence 1 of the German Social Code (SGB) XII, trainees are generally not entitled to any supplementary social benefits in addition to those receiving BAföG (Federal Training Assistance Act) benefits. The court ruled that the exceptional circumstances for an atypical case of particular hardship did not apply.
The legislator deliberately separated social assistance from the financial burdens of educational support. Therefore, economic reasons – particularly the lack of supplementary social benefits – are not suitable to justify a special hardship case under Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII).
More information: www.lto.de
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Federal Constitutional Court, 22.08.2018 – 2 BvR 2647/17
Chamber decision granting the appeal: Violation of the right to equal access to justice (Article 3 Paragraph 1 of the Basic Law in conjunction with Article 19 Paragraph 4 of the Basic Law) by denying legal aid for an asylum-related supplementary action – failure to consider changes in the prospects of success after the legal aid application was ready for approval, to the detriment of the applicant – different standards of review for granting legal aid on the one hand and the main proceedings on the other – determination of the value in dispute
Successful constitutional complaint due to violation of the right to equal access to justice by denying legal aid for an asylum claim for additional costs
Source: www.bundesverfassungsgericht.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
