1. Decisions of the Federal Social Court on social assistance (SGB XXII) and SGB II
1.1 – BSG, Judgment of 28.08.2018 – B 8 SO 9/17 R
Regarding the assumption of car repair costs as integration assistance benefits.
Guiding principle (Editor):
Entitlement to social assistance; assumption of car repair costs through integration assistance; requirements for the knowledge principle when applying social assistance.
Source: socialcourtsability.de
1.2 – BSG, Judgment of 14.06.2018 – B 4 AS 23/17 R
Can a person entitled to benefits who lives with their spouse in a household receiving benefits claim the standard allowance for single persons according to Section 20 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), and demand an exception to the application of the per capita principle when distributing accommodation costs, if the spouse, due to her restricted residence permit (which expires upon receipt of public benefits), does not realize a benefit entitlement to which she is generally entitled under the SGB II?
Guiding principle (Editor):
No grounds for deviating from the principle of equal shares (see in more detail the Federal Social Court's decision of February 14, 2018 – B 14 AS 17/17 R) are apparent. The defendant did not pay the then-wife her equal share only because she had not submitted an application. This is not comparable to the reduction or elimination of the benefit entitlement due to a so-called sanction.
Source: socialcourtsability.de
1.3 – BSG, Judgment of 09.08.2018 – B 14 AS 38/17 R
Guiding principle (Editor):
If the basic income support provider, upon application by the benefit recipient, decides that the portion of the benefits attributable to accommodation and heating is to be paid directly to the landlord, this, according to the wording, systematic structure, and regulatory intent, establishes solely a right of receipt for the landlord that deviates from Section 42 of the German Social Code, Book II (SGB II). A landlord therefore acquires an independent, separately enforceable claim only from an express declaration of assumption of debt, by which the job center, irrespective of the direct payment decision under Section 22 Paragraph 7 Sentence 1 SGB II, undertakes to pay the rent owed by the benefit recipient. According to the plaintiff's own submissions, the defendant did not issue such a declaration.
Source: socialcourtsability.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 10 October 2018 – L 31 AS 462/16
Sickness benefit – one-off payment – ongoing benefit
Guiding principle:
The retroactive sick pay constitutes a current income that only reduces the need for assistance in the month it is received.
Source: socialcourtsability.de
2.2 – Hamburg State Social Court, Judgment of 10 September 2018 – L 4 AS 316/15
Guiding principle (Editor)
: "There is no basis for increasing operating revenue by adding a gross profit margin according to the guidelines of the Federal Ministry of Finance, as the respondent used as the basis for its decision in the rejection notice. These guidelines are not intended for income calculation purposes under the German Social Code, Book II (SGB II), but rather as an aid for the tax authorities, and they also exhibit a wide range (2016 guidelines for snack bars: gross profit margin 144% – 376%). Furthermore, a deviation of the plaintiff's revenue from these guidelines does not imply that a higher income is actually being earned than stated. There is a complete lack of any other evidence to support this, and a deviation from the guidelines could simply reflect the inefficiency of the business management."
Source: socialcourtsability.de
2.3 – Hamburg State Social Court, Judgment of 22 February 2018 – L 4 AS 401/16
Guiding principle (Editor):
According to the case law of the Federal Social Court, which the Senate follows in this respect, subletting parts of the rented accommodation must be taken into account as cost-reducing measures when calculating the costs of accommodation. Subletting payments do not regularly constitute income within the meaning of Section 11 of the German Social Code, Book II (BSG, judgment of August 6, 2014 – B 4 AS 37/13 R; similarly, LSG Schleswig-Holstein, judgment of April 12, 2011 – L 6 AS 37/10, subsequently BSG, judgment of November 29, 2012 – B 14 AS 161/11, leaving this question open; LSG Berlin-Brandenburg, judgment of February 22, 2008 – L 28 AS 1965/07; contra SG Potsdam, judgment of March 26, 2014 – S 38 AS 1542/13 WA, at least in the case where the appropriateness of the accommodation costs is not in dispute).
Source: socialcourtsability.de
2.4 – Hamburg State Social Court, Judgment of 27 September 2018 – L 4 AS 258/17
Guiding principle (Editor):
The question of whether the JC must bear the costs of a local court payment and eviction action, for which the plaintiff was ordered to pay by a cost assessment order, is answered in the negative here.
The costs of the district court proceedings are not included in the needs for accommodation and heating within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II).
The costs of the payment and eviction proceedings were not incurred by the plaintiff either through the acquisition of the apartment or through its ongoing use. Nor are these costs necessary to preserve the apartment for the plaintiff. This is because it has neither been alleged nor is it apparent that the landlord made the plaintiff's continued use of the apartment contingent upon the payment of these costs (this was the situation in the case underlying the Federal Social Court's judgment of June 17, 2010 – B 14 AS 58/09 R).
The assumption of costs for an eviction lawsuit as an "annex" to the benefits under Section 22 Paragraph 1 of the German Social Code, Book II (regarding this fundamental possibility, see Federal Social Court, judgment of November 24, 2011 – B 14 AS 15/11, para. 19; similarly, Higher Social Court of Baden-Württemberg, judgment of June 27, 2017 – L 9 AS 1742/14) is also not an option in this case.
The assumption of the costs of the local court proceedings as debts of the plaintiff, based on Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), is also not possible. The costs in question are unlikely to constitute debts within the meaning of Section 22 Paragraph 8 SGB II, but rather an unmet need that arose during the plaintiff's period of need for assistance (for the distinction between debts and expenses/unmet needs, see Federal Social Court (BSG), judgment of March 22, 2010 – B 4 AS 62/09 R).
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 07.09.2018 – S 37 AS 6994/18 – legally binding
Basic income support for job seekers – final decision after preliminary benefit approval – based on the average income during the approval period – income calculation or adjustment
Principle (Juris)
1. Section 41a para. 4 SGB 2 prescribes, after provisional approval, a distribution of the income earned during the approval period over six months even if income was only earned in one month.
2. A restrictive interpretation of the standard lacks justification in light of the legislative process. The correction of undesirable outcomes remains the prerogative of the legislature.
How income adjustment is to be carried out in the case of averaging income earned in only one month can remain open. In any case, an adjustment prior to distribution in accordance with Section 11b of the German Social Code, Book II (SGB II) is not objectionable.
Source: socialcourtsability.de
3.2 – Social Court Berlin, Judgment of 26.09.2018 – S 142 AS 6068/18
Principle (Juris):
In accordance with Section 41a Paragraph 4 of the German Social Code, Book II (SGB II), when making the final determination of entitlement to benefits after a prior provisional approval, an average income for the entire approval period must be calculated even if employment was only pursued for parts of the approval period and therefore income was only received for parts of the approval period; contrary to the Federal Employment Agency's technical guidance on Section 41a SGB II (paragraph 41a.27), whether the reason for the provisional approval was fluctuating income is irrelevant.
Source: socialcourtsability.de
3.3 – Apply for a disability pension!, a contribution by attorney Kay Füßlein to the Berlin Social Court, decision of October 25, 2008 – S 121 AS 10417/18 ER.
In my opinion, after a prolonged illness and incapacity for work, recipients of benefits under the German Social Code, Book XII (SGB XII), almost reflexively receive a letter from the Job Center requesting them to apply for a disability pension.
Unfortunately, the authorities are getting things mixed up, as incapacity for work and incapacity for earning a living have completely different criteria. In fact, benefit recipients have already been summoned who have no entitlement to a reduced earning capacity pension at all, because they never paid into the pension insurance scheme.
To clarify this, the law provides for a special procedure in § 44a SGB II, which, however, is hardly ever used in practice.
In other words, these letters of demand are generally unlawful. Equally unlawful is the subtle pressure conveyed that benefits may be discontinued.
In its decision of October 25, 2008 – S 121 AS 10417/18 ER – the Social Court of Berlin has once again emphasized that the procedure according to § 44a SGB II must be followed:
The initial reference to benefits under the German Social Code, Book XII (SGB XII) is incorrect:
Source: www.ra-fuesslein.de
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – Mecklenburg-Vorpommern State Social Court, decision of 27 August 2018 – L 2 AL 29/18 B ER
Regarding the granting of vocational training assistance to a foreigner.
Source: www.landesrecht-mv.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Bavarian State Social Court, Judgment of 12 July 2018 – L 18 SO 29/18
Guiding principle (Editor):
On the question of the necessity of travel expenses as measures of integration assistance – also with regard to the decisions of the Federal Administrative Court of 14 October 1994, 5 B 114/93 and the Higher Social Court of Baden-Württemberg of 29 June 2017, L 7 SO 5382/14.
Principle (Juris):
In principle, all measures necessary to enable appropriate schooling in order to eliminate or reduce the consequences of a disability and thus achieve the legally formulated goal of participation in social life are eligible for integration assistance. However, the reimbursement of travel expenses as an integration assistance measure to prepare for appropriate schooling requires an assessment of necessity in the specific case. For example, travel expenses may not be necessary if there are other suitable childcare facilities closer to the residence where preparation for appropriate schooling is possible—a fact not altered by the right to choose a childcare facility under Section 9 Paragraph 2 of the German Social Code, Book XII (SGB XII)—and if the travel expenses are not disability-related. If there is no specific necessity, reimbursement of travel expenses is also not warranted as an "ancillary benefit" to other integration assistance measures.
Source: socialcourtsability.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Federal Court of Justice: Accommodation costs in enforcement proceedings, a contribution by Herbert Masslau
More information: www.herbertmasslau.de
6.2 – How job centers can and cannot avoid expedited court proceedings, an article by attorney Helge Hildebrandt,
further information: sozialberatung-kiel.de
6.3 – Bavarian Administrative Court, decision of December 27, 2017 (file no.: 3 CS 17.1450):
Guiding principle Dr. Manfred Hammel:
A person placed in accommodation under homelessness law generally has no legal right to remain permanently in the accommodation once assigned to them, but must accept being transferred by the authorities to another accommodation.
The assignment to the previous accommodation can be officially revoked at any time for objective reasons, and the assigned person may be asked to vacate.
Homeless people have a fundamental right to full-day accommodation. Simply providing a place to sleep for the night does not eliminate the homelessness of the person concerned, regardless of weather conditions. Even the "unsuitability" for accommodation in a communal facility resulting from the homeless person's maladaptive, socially harmful behavior does not alter the fundamental obligation of the security authorities to avert danger.
However, if self-harm or harm to others is identified, placement under the state's accommodation law takes priority.
For a family of three, an assigned homeless shelter with a size of 46.42 square meters is sufficient. Homeless individuals are not entitled to "social housing" with the corresponding requirements regarding living space.
6.4 – Schleswig Social Court, judgment of August 27, 2018 (Case No.: S 15 SO 150/15.VR):
Guiding principle Dr. Manfred Hammel:
The starting point for the concrete appropriateness of accommodation costs is Section 35 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII), insofar as this provision stipulates that expenses exceeding the scope appropriate to the particularity of the individual case are to be recognized as a need – limited in time by the standard period of Section 35 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII).
Special personal circumstances of the person entitled to benefits can also lead to increased protection of their social environment compared to benefit recipients without such personal circumstances. Such circumstances, which may result in individual needs that differ specifically from those of other benefit recipients, include, for example, health-related aspects.
This is the case when the legal guardian of the applicant with reduced earning capacity lives in the same house as this benefit recipient, thereby facilitating and promoting the legal guardianship.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
