1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG Saarland, judgment of June 22, 2018 – L 9 AS 11/17
Social Court Proceedings – Supplementary Judgment pursuant to Section 140 of the Social Court Act (SGG) – Expiry of the Time Limit – Inadmissibility of the Appeal – Action for Annulment – Basic Income Support for Job Seekers – Refusal of Medical or Psychological Examinations – Violation of Cooperation Obligations – Denial of Benefits pursuant to Section 66 of the German Social Code, Book I (SGB I) – Relationship to other Sanction Provisions
Principle (Juris)
1. There are strong arguments for considering the supplementary judgment procedure under Section 140 of the Social Court Act (SGG) as the only way to correct or complete undetected or concealed partial judgments in cases of claims inadvertently overlooked. An appeal can only be lodged if the judgment being challenged is deemed substantively incorrect. However, if the court has not ruled on the asserted claim, either wholly or in part, this constitutes a non-decision, which is not subject to appeal in principle. The need for legal protection by appealing a failure to decide is lacking, as no requisite grievance is apparent. With the expiration of the deadline for the application for supplementary judgment, the pendency of the claim inadvertently overlooked by the Social Court is extinguished, so that an appeal lodged against the judgment is inadmissible insofar as it concerns this claim. (Paragraph 46)
2. In cases where a requested benefit – here, unemployment benefit II (Alg II) – is denied pursuant to Section 66 of the German Social Code, Book I (SGB I) due to a violation of the cooperation obligations stipulated in Sections 60 et seq. SGB I, only a simple appeal is generally available. If the job center requests the recipient of unemployment benefit II to undergo a medical examination pursuant to Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), and the recipient fails to comply with this request without good cause, the job center may also deny the benefit, at least partially, pursuant to Sections 62 and 66 of the German Social Code, Book I (SGB I). The sanction provisions of Sections 31 Paragraph 2 No. 4, 31a of the German Social Code, Book II (SGB II) in conjunction with Sections 159 Paragraph 1 Sentence 2 No. 6, 309 of the German Social Code, Book III (SGB III) do not constitute a special regulation that excludes the application of Sections 60–66 of the German Social Code, Book I (SGB I) (following the Federal Social Court's decision of May 14, 2014 – B 11 AL 8/13 R = SozR 4-4300 § 309 No. 2). (Paragraph 55)
Source: Juris
1.2 – Berlin-Brandenburg State Social Court, Judgment of 30 August 2018 – L 32 AS 1423/15
Section 11b Paragraph 1 Sentence 1 No. 3 SGB II a. F.
Guiding principle (Editor):
1. Contributions to motor vehicle liability insurance, as legally mandated contributions, must be taken into account at the time they are due, i.e., when they become payable (based on the Federal Social Court ruling of April 25, 2013 – B 8 SO 8/12 R). The law provides no basis for monthly distribution in one-twelfth of the annual amount.
Source: socialcourtsability.de
1.3 – Berlin-Brandenburg State Social Court, Judgment of June 7, 2018 – L 10 AS 2660/16 – legally binding
Social law administrative procedure – Reimbursement of costs in preliminary proceedings – Claim for exemption – Community of need – Joint debtor – Joint creditor
Guiding principle (Editor)
1. The members of a community of need are – joint creditors – within the meaning of § 428 BGB of a claim for reimbursement of costs pursuant to § 63 SGB X.
Principle (Juris)
1. If two members of a household receiving social assistance (mother and minor son) jointly obtain a cost assessment notice pursuant to Section 63 Paragraph 3 of the German Social Code, Book X (SGB X) for a single amount that contains no information on the respective shares, they are joint creditors with regard to the claim for reimbursement of costs (cf. Federal Court of Justice (BGH), judgment of May 20, 1985 – VII ZR 209/84).
Source: socialcourtsability.de
Legal tip:
(See also LSG Saxony-Anhalt, 28.02.2017 – L 2 AS 390/15 – The members of a community of need are not joint creditors within the meaning of § 428 BGB of a claim for reimbursement of costs pursuant to § 63 SGB X.)
1.4 – Lower Saxony-Bremen State Social Court, Judgment of 13 September 2018 – L 15 AS 19/16
LSG NSB confirms the rent cost limits applicable in Bremerhaven within the framework of receiving SGB II benefits (“Hartz IV”).
Guiding principle (Editor):
1. The appropriateness of a utility bill adjustment can only be determined by considering the costs incurred monthly during the billing period. A claim for reimbursement of the adjustment based on Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is precluded if the eligible persons have already been granted accommodation costs of an appropriate amount throughout the billing period.
Principle (Juris)
1. The rent index 2011/2012 for Bremerhaven, which was used by the Magistrate of the City of Bremerhaven for its Technical Directive on benefits for accommodation and heating under the SGB II and SGB XII, which came into force on 1 July 2011, meets the requirements of a coherent concept.
Source: socialcourtsability.de
See also lower court:
4.2 – Bremen Social Court, judgment of October 27, 2015 (Case No.: S 28 AS 1545/12):
More information: tacheles-sozialhilfe.de
Legal tip:
Bremerhaven accommodation costs for Hartz IV recipients are lawful
The LSG Celle-Bremen has ruled for the first time that the administrative directive of the city of Bremerhaven regarding benefits for accommodation and heating according to the local rent index corresponds to a "coherent concept".
Further information: www.juris.de
Note:
Guiding principle Dr. Manfred Hammel
Lower Saxony-Bremen State Social Court, judgment of September 13, 2018 (Case No.: L 15 AS 19/16):
1. Section 22 paragraph 1 sentence 1 of the German Social Code, Book II (SGB II) covers not only ongoing but also one-off costs of accommodation.
2. If a utility bill is due in a single payment, it must be considered as an actual, current need at the time it becomes due, and not spread over longer periods. Therefore, any additional payments due are considered part of the current need in the month they are due.
3. The basis and amount of the asserted claim are assessed solely according to the factual and legal circumstances of the period to which the operating cost surcharge is to be attributed in the actual sense after its accrual.
4. Regarding the requirements for a coherent concept for determining the appropriateness of the costs of accommodation within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II, which is based on the local rent index (Section 558c BGB).
1.5 – North Rhine-Westphalia State Social Court, decision of 06.09.2018 – L 7 AS 195/18 NZB – legally binding
Guiding principle (Editor)
1. The legal question of whether the standard allowance for a single person from January 2016 in the amount of EUR 404 or from January 2017 in the amount of EUR 409 still meets the requirements of the Federal Constitutional Court in the decision of 23 July 2014 does not require clarification.
Source: socialcourtsability.de
Legal tip:
See also LSG Berlin-Brandenburg, judgment of 22.08.2018 – L 18 AS 267/18
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Saarbrücken, Judgment of 22.06.2018 – S 21 AS 770/17
The rent index relevant for basic income support in the district of Neunkirchen meets the requirements of the Federal Social Court (BSG)
The Saarbrücken Social Court has ruled that the rent index relevant for basic income support in the district of Neunkirchen from November 2014 meets the requirements of the Federal Social Court's jurisprudence for a coherent concept for determining and granting the needs for the so-called gross rent (basic rent and cold ancillary costs) according to the German Social Code, Book II (SGB II).
Summary:
In the opinion of the Social Court, the decisive factor is that, during the period in dispute, the aforementioned figures, which are derived from the defendant's concept based on the rent index relevant to basic income support developed by the company R.&P. in November 2014 and ultimately adopted by the district council of the Neunkirchen district for the purpose of determining the reasonable costs for accommodation and heating pursuant to Section 22 of the German Social Code, Book II (SGB II), could be used as a basis for calculating the plaintiff's claim. In accordance with the Federal Social Court's (BSG) guidelines for specifying the limits of adequacy, the abstractly appropriate apartment size and standard were determined according to Section 10 of the Housing Promotion Act (WoFG). In a second step, the spatial benchmark for further review was established. This resulted in the identification of three comparable areas (1. City of Neunkirchen / 2. Municipalities of Eppelborn, Illingen, Merchweiler, Ottweiler, Schiffweiler / 3. Municipality of Spiesen-Elversberg). Based on these, it was then determined how much an individual in need of assistance would have to spend, on average, to live in an apartment that is considered appropriate in terms of size and standard on the relevant housing market. The data collection itself, as well as the data collection period and the data analysis methodology, were found to be without fault. The validity of the collected and used data was ultimately ensured by conducting an actual review of the availability of these apartments on the housing market within the comparable area. This investigation revealed that in the defendant's area, and particularly within the individual comparison areas, there is a considerable supply of housing within the limits of what is considered reasonable, which in some cases even falls below these limits.
juris editorial team.
Source: Press release from the Saarbrücken Social Court dated October 10, 2018: www.juris.de
3. Decisions of the State Social Courts and Social Courts on Employment Promotion (SGB III)
3.1 – State Social Court of Mecklenburg-Vorpommern, Decision of 20 July 2018 – L 2 AL 7/18 B ER
Guiding principle (Editor)
1. On the entitlement of a foreigner (Ukrainian citizen) to the granting of vocational training assistance (here denied).
Source: www.landesrecht-mv.de
3.2 – Social Court Lübeck, decision of 09.10.2018 – S 36 AL 172/18 ER
SG Lübeck: BAB for Afghan asylum seeker with residence permit
Finally, a positive decision regarding educational support for people with temporary residence permits:
In expedited proceedings, the Lübeck Social Court granted vocational training assistance to a person from Afghanistan with a temporary residence permit. The court stated that a purely abstract consideration of "good prospects of remaining" based solely on the overall protection rate cannot be elevated to a general principle. "Even linguistically, the expectation of lawful and permanent residence in Section 132 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), is not linked to the country of origin, but to the individual foreigner applying for the benefit. While this does not render general considerations, such as the aforementioned overall protection rate (...), worthless from the outset, it nevertheless does not eliminate the need for an individual assessment."
The court is convinced that the "good prospects of remaining" arise from the very fact of the training itself. This is because "it can be assumed that, even in the event of a negative court decision on his asylum application, the applicant will be legally permitted to remain in Germany for the duration of his training (and, if applicable, beyond the training pursuant to Section 18a Paragraph 1a of the Residence Act). The requirements of Section 132 Paragraph 1 Sentence 1 of the German Social Code, Book III, are therefore met."
Source: Claudius Voigt
Project Q – Office for Qualification of Refugee and Migration Counseling, Non-profit Association for the Support of Asylum Seekers (GGUA Refugee Aid), Hafenstraße 3-5, 48153 Münster
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Hessian State Social Court, Judgment of 09.05.2018 – L 4 SO 244/16 – Appeal pending before the Federal Social Court – B 8 SO 10/18 R
Guiding principle (Editor)
1. On the question of taking into account an income surplus beyond the month of need when assuming funeral costs according to § 74 SGB XII.
Principle (Editor)
1. Since this is a one-time need, the assumption of the entire funeral costs by the plaintiff, who is obligated to arrange the funeral, is to be considered reasonable. This applies at least when – as in this case – the funeral costs can be covered in total by available income within a period of only four months (cf., regarding the consideration of the four-month income surplus, similarly: Schleswig-Holstein Higher Social Court, judgment of March 9, 2011 – L 9 SO 19/09).
2. In addition to a casket spray, a wreath (see Berlit in: LPK-SGB XII, 10th edition 2015, § 74 para. 13) also falls under the category of costs typically incurred for a dignified, simple burial in accordance with local custom (Federal Social Court, judgment of August 25, 2011 – B 8 SO 20/10 R). However, the costs for four small bouquets at €3.50 each are unreasonable, because, firstly, the use of small bouquets no longer corresponds to the requirements of a simple burial, and secondly, at most, the costs for two small bouquets would be necessary, namely for the plaintiff and his wife.
3. The question, which has not been conclusively settled in legal literature and case law, can remain open as to whether the means test should apply solely to the persons obligated to arrange the funeral or whether the regulations concerning the community of support also apply without restriction in the cases of Section 74 of the German Social Code, Book XII (SGB XII) (for the consideration of income and assets, at least of the spouse not living separately from the person obligated to arrange the funeral: Schleswig-Holstein Higher Social Court, judgment of March 9, 2011 – L 9 SO 19/09; Lower Saxony-Bremen Higher Social Court, judgment of June 20, 2013 – L 8 SO 365/10; Baden-Württemberg Higher Social Court, judgment of February 25, 2016 – L 7 SO 262/15; Berlit: in LPK-SGB XII, 11th edition 2018, Section 74, marginal note 13; contra: Greiser/Eicher in: Schlegel/Voelzke, jurisPK-SGB XII, 2nd ed. 2014, § 74 SGB XII, Rn. 68; Schlette in: Hauck/Noftz, SGB, 05/13, § 74 SGB XII, Rn. 12) with the consequence of taking into account the income and assets of the plaintiff's wife, because § 19 para. 3 SGB XII applies without restriction to all special benefits of the SGB XII.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Düsseldorf, Judgment of 18 April 2018 – S 17 SO 572/17
Guiding principle (Editor)
1. On the assumption of uncovered home care costs when taking into account a funeral pre-arrangement contract in the calculation of the plaintiff's assets.
Guiding principle (Editor)
1. The amount of the funeral pre-arrangement contract is not unreasonably high at EUR 8,000.00.
2. The realization of the assets deposited with Deutsche Bestattungsvorsorge Treuhand AG in the amount of EUR 8,000.00 constitutes a hardship within the meaning of Section 90 Paragraph 3 Sentence 1 SGB XII, because these are assets from a reasonable funeral pre-arrangement contract.
Note from the Court:
To determine the appropriateness of funeral pre-arrangements, the first point to consider is the cost that the locally responsible authority is obligated to cover as necessary funeral expenses under Section 74 of the German Social Code, Book XII (basic amount), as this takes into account local circumstances such as varying cemetery fees. Regarding the type of burial (earth burial, cremation, etc.), the resident's choice is generally the basis for calculation. The resulting cost amount, which represents only the most basic standard, is to be increased to the appropriate limit, taking into account any preferences the resident may have regarding the arrangements (additional amount). The costs of an average funeral can serve as a guideline in this calculation (see: Higher Administrative Court of North Rhine-Westphalia, Judgment of November 16, 2009 – 12 A 1363/09).
Source: socialcourtsability.de
5.2 – Social Court Münster, decision of 05.04.2018 – S 11 SO 60/18 ER
Regarding the increased nutritional needs for a kosher diet, the answer is no.
Guiding principle (Editor)
1. The applicant's mere wish to eat kosher food does not establish the medical necessity of such a diet.
2. An increase in the standard allowance pursuant to Section 27a Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII) would be the only possible option here, but based on the applicant's submissions to date, it cannot be established that he is inescapably dependent on kosher food. So far, it has not been demonstrated that the applicant is actually in a situation of duress with regard to kosher food, i.e., that he compulsively believes he must consume this type of diet under all circumstances.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Asylum Law
6.1 – Berlin-Brandenburg State Social Court, decision of 20 September 2018 – L 23 AY 19/18 B ER – legally binding
Benefit restriction – so-called “chain claim restriction” – duration – behavior-related reduction
The requirements of Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) are met here – Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) does not preclude the reduction of benefits –
Guiding principle (Editor)
1. In the case of Section 1a Paragraph 1 AsylbLG, only a one-time restriction of benefits of 6 months is possible (contra jurisPK -SGB XII/Oppermann Rn. 13).
2. The application of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is not excluded in the present case with regard to Article 1 in conjunction with Article 20 of the Basic Law (GG).
Source: socialcourtsability.de
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Higher Administrative Court Koblenz of 24 September 2018 – Case No. 7 A 10300/18.OVG
No maintenance advance payment if the child's mother, who receives ALG II (unemployment benefit II), fails to cooperate in determining the child's father.
The Higher Administrative Court of Koblenz has ruled that a claim for benefits under the Maintenance Advance Act is excluded if the child's mother does not do everything possible and reasonable to determine the identity of the child's father.
Further information: www.juris.de
Legal tip:
Regarding SGB II: aA SG Speyer, judgment of 25.10.2016 – S 6 AS 1011/15
No exclusion from Hartz IV benefits due to concealment of the child's father
Guiding principle (Editor)
1. A child's entitlement to basic income support under the German Social Code, Book II (SGB II) is not excluded by the fact that the mother keeps the name of the child's father secret.
Legal tip:
a. A. SG Trier, judgment of 03.08.2015 – S 5 AS 150/15 – Denial of ALG 2 in case of unjustified refusal of the child's mother to name the child's father
7.2 – The Berlin-Reinickendorf Job Center apparently does not want to accept anonymous trusted individuals at personal interviews (see below, photo of an information leaflet)
Post by lawyer Volker Gerloff, Berlin via Facebook (rae-gerloff-gilsbach.de)
In my view, the "obligation to identify" accompanying persons of trust is not lawful. The cited decision of the Stuttgart Social Court does not change this, because the reasoning is unconvincing
Providing identification is a form of identity verification. This, in turn, is an infringement on the fundamental right to informational self-determination. Therefore, there must be a specific legal basis
1) Section 60 of the German Social Code, Book I (SGB I) is not suitable, as the identity of the assistant is completely irrelevant for the granting of benefits.
2) Section 13 of the German Social Code, Book X (SGB X) is also unsuitable. The considerations of the Stuttgart Social Court are unconvincing for the following reasons:
a) The identity and relationship between the benefit recipient and the person of trust are important in order to be able to check whether the support person is providing prohibited legal services
– If the person providing support explains that they are doing this out of neighborly assistance or friendship, then it is clear that it cannot be an illegal legal service; moreover, this question only arises when the person providing support says something (often it is “only” about having someone with you)
b) Identity is important in order to be able to verify whether the person of trust is able to present their case appropriately
– The job center can recognize a person's rhetorical skills from their name? Bravo! If the designated contact person only spouts incoherent nonsense, then that person should be thrown out – knowing their identity is irrelevant for that.
c) Identity is important to verify legal capacity
– If someone is legally incapacitated due to a mental illness, the JobCenter will quickly recognize this fact, even without knowing the person's identity – however, knowing their identity is unlikely to be of much help here either.
– If the person under trust appears to be a minor, then an identity check might be justified…
3) The right of the property owner is also ineffective, as the authority is a public building. If it were truly necessary for the Job Center to know the identity of everyone on its premises (as the Stuttgart Social Court ruled), then access controls at the entrance would be unavoidable – but that would be a rather absurd idea…
4) No other possible legal bases are apparent, so that identity checks must be limited to individual cases where there are indications that a ground for refusal might exist (assistant looks like a minor; is unable to speak in complete sentences; etc.)
SO: If you go to the Job Center with a trusted person and this trusted person does not want to reveal their identity, then the following applies:
– Ask about the legal basis for the identity check
– Ask for specific indications as to why a ground for rejection within the meaning of Section 13 Paragraphs 5 and 6 of the German Social Code, Book X (SGB X) is assumed
– if necessary, demand that the designated contact person first be provided with all information pursuant to the GDPR regarding the planned processing of their identity data in an understandable form (especially Article 15 GDPR; Article 21 Paragraph 4 GDPR: information on the right to object must be provided!).
– Request a written rejection decision – then take it to a lawyer
The threat of having a court date considered missed if you appear with "anonymous" support is outrageous. If that happens: go see a lawyer!
Finally, a somewhat naive thought: Shouldn't public administration in a democratic state governed by the rule of law be designed to be citizen-friendly? Shouldn't the employees of a public authority see the primary purpose of their work as serving the citizens? Just a crazy idea to ponder this evening
Note:
SG Stuttgart, Decision of 28.11.2014 – S 4 AS 6236/14 ER (https://dejure.org/2014,37332)
Social law administrative procedure – Obligation of a support person to provide identification to the basic income support provider
Guiding principles:
The job center is entitled to collect personal details from an assistant and to have the assistant present their identification.
Comments on Facebook, for example from Harald Thomé: "My colleague is absolutely right!"
And from Prof. Dr. Maria Wersig, FH Dortmund: "Unbelievable!"
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
