1. Decisions of the Federal Social Court on basic security for job seekers (SGB II)
1.1 – BSG, judgment of 08/09/2018 – B 14 AS 1/18 R
Basic security for job seekers - priority social benefits - obligation to apply for an early old-age pension with pension deductions - unfairness in the event of an impending old-age pension without deductions for particularly long-term insured people in 4 months
Guidance sentence (editor)
Federal Social Court: Flat-rate pension reduction is not permitted
The early claim of an old-age pension with deductions is unfair because the plaintiff can receive an old-age pension without deductions “in the near future” within the meaning of Section 3 of the Unfairness Ordinance.
Short version:
If there is a gap of four months between the retirement pension with reductions and the reduction-free retirement pension, the reference to the use of the reduced retirement pension according to Section 3 of the Unfairness Ordinance is unfair because in this sense the possibility of a retirement pension without reductions exists “in the near future”.
With the exemption from the obligation to claim a reduced old-age pension with regard to an “upcoming retirement pension without deductions”, the legislator has, according to his regulatory intention, taken into account the disproportion between the amount of deductions to be accepted in the event of early claim on the one hand and, on the one hand, the comparatively short remaining period of receipt of benefits On the other hand, basic security for job seekers until the start of the tax-free old age pension reacts. Measured against this, an additional use of basic security benefits of four months with an average pension receipt period of currently almost 20 years is so short that the reference to a permanently reduced old-age pension cannot be expected of a beneficiary
Source: www.rechtrecht-im-internet.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 – Hessian State Social Court, decision v. October 12, 2018 – L 9 AS 462/18 B ER
Guidance sentence (editor)
1. The exclusion of benefits for foreign nationals according to Section 7 Paragraph 1 Sentence 2 No. 2 c) SGB II (in the version since December 29, 2016) is most likely contrary to European law, as this is not justified by a justification Community law, in particular not Art. 24 Para. 2 Directive 38/2004/EC, should be covered.
2. The majority of the literature is at least of the opinion that the exclusion of benefits is contrary to European law because there is no exception to the ban on discrimination for the right to freedom of movement according to Article 10 of Regulation (EU) No. 492/2011 (Article 18 of the Treaty on the Functioning of the European Union Union - TFEU -, Art. 4 Regulation (EC) No. 883/2004), in particular the restriction option according to Art. 24 Paragraph 2 of Directive 2004/38/EC is not applicable because it is not a right of residence that corresponds to the 2004 Directive /38/EG Unterfalle (Devetzki/Janda, ZESAR 2017, 197, 203 ff.; Oberhäuser/Steffen, ZAR 2017, 149, 150 ff.; Leopold, in: jurisPK-SGB II, § 7 Rn. 99.16, as of: 08.01 .2018; G. Becker, in: Eicher/Luik, SGB II, 4th edition 2017, § 7 Rn. 50). Large parts of the case law of the state social courts also assume, with essentially the same reasoning, that the exclusion of benefits is (predominantly likely) contrary to European law (Schleswig-Holsteinisches LSG, decision of February 17, 2017 - L 6 AS 11/17 B ER -, juris, Rn . 23 ff.; LSG Saxony-Anhalt, decision of June 6, 2017 - L 2 AS 567/17 B ER -, juris, Rn. 40; LSG for the state of North Rhine-Westphalia, decision of August 21, 2017 - L 19 AS 1577 /17 B ER -, juris, Rn. 29 ff.; decision of September 26, 2017 - L 6 AS 380/17 B ER -, juris, Rn. 27 ff.; a. A. Thüringer LSG, decision of 1. November 2017 L 4 AS 1225/17 B ER -, juris, para. 28).
3. Since the legal question of whether Section 7 Paragraph 1 Sentence 2 No. 2c SGB II is compatible with European law, the Senate is of the opinion that in the main proceedings a submission to the ECJ as a statutory judge (Article 101 Paragraph 1 Sentence 2 GG) requires (Art. 267 TFEU), the Senate decides on the basis of a consideration of the consequences (e.g. LSG for the state of North Rhine-Westphalia, resolution of June 8, 2018 - L 7 AS 420/18 B ER).
Source: socialcourtsability.de
Guiding Principle (Juris)
1. A service provider's complaint against an interim order in which he was obliged to provisionally provide services does not lack the need for legal protection if he has provided provisional services.
2. On the assessment of the consequences in the expedited procedure with regard to the exclusion of benefits in accordance with Section 7 Paragraph 1 Sentence 2 No. 2c SGB II.
2.2 – State Social Court of North Rhine-Westphalia, decision v. October 30, 2018 – L 19 AS 1472/18 B ER – legally binding
Right of residence from Section 11 Paragraph 1 Sentence 11 FreizügG/EU. in conjunction with Section 28 Paragraph 1 Sentence 1 No. 3 Residence Act and Article 18 Paragraph 1 TFEU
Orientation sentence (editor)
1. Section 28 Paragraph 1 Sentence 1 No. 3 of the Residence Act provides that a foreign parent of a minor unmarried German is entitled to exercise personal custody - even without securing a livelihood within the meaning of Section 5 Paragraph 1 No. 1 of the Residence Act (Section 28 Paragraph 1 Sentence 2 AufenthG) - a residence permit must be issued if the German has his habitual residence in the federal territory. § 28 Para. 1 Sentence 1 No. 3 AufenthG applies to minor Union citizens who have a right of residence under the FreizügG/EU and their parents due to the prohibition of discrimination on grounds of nationality set out in Article 18 Para. 1 TFEU (see Senate resolutions of November 30, 2015 - L 19 AS 1713/15 B ER, of January 20, 2016 - L 19 AS 1824/15 B ER, of June 22, 2016 - L 19 AS 924/16 B ER and of August 1st .2017 - L 19 AS 1131/17 B ER; Senate judgment of June 1st, 2015 - L 19 AS 1923/14; LSG NRW, decision of September 26th, 2017 - L 6 AS 380/17 B ER; LSG Berlin-Brandenburg, Resolution of June 29, 2016 - L 25 AS 1331/16 B ER; Dienelt in Bergmann/Dienelt, Foreigners' Law, 12th edition 2017, § 11 FreizügG/EU, Rn. 38 f.; aA LSG Berlin-Brandenburg, resolution of May 22 .2017 - L 31 AS 1000/17 B ER; LSG NRW, decision of July 27, 2017 - L 21 AS 782/17 B ER; SG Berlin, judgment of July 9, 2018 - S 135 AS 23938/15).
Source: socialcourtsability.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 - Hildesheim Social Court - S 39 AS 1382/17 from October 24, 2018
Standards: Section 22 Paragraph 1 Sentence 1 SGB II - Keywords: Göttingen district, analysis and concepts, appropriateness limits, accommodation costs
Orientation sentence (editor)
The 39th Chamber agrees with the statements of the 26th Chamber of the Hildesheim Social Court in its judgment of April 5, 2017 (ref. S 26 AS 504/15) and adopts them as its own.
It states: “The defendant's concept does not meet the minimum requirements for a coherent concept in essential points.
Source: www.anwaltskanzlei-adam.de
3.2 – SG Heilbronn, judgment of October 11, 2018 – S 15 AS 705/18
The costs for accommodation in the women's shelter are paid by the municipality of origin
The SG Heilbronn has decided that the municipality of origin pays the costs of accommodation and care in a women's shelter if a recipient of help has to flee to another city to escape domestic violence.
Short version:
In the opinion of the social court, it is irrelevant whether the stay in the women's shelter was actually necessary until July 2017 in this individual case. The underlying provision of Section 36a SGB II is intended to ensure a fair distribution of burdens between different municipal authorities. The agency that maintains a women's shelter and thus also offers refuge to women from other communities and their children should not be left with the costs. Since the admission of a woman and possibly her children from the area of responsibility of another aid provider is largely cost-neutral for the operating community, the willingness to accept women from another community is increased. The regulation therefore serves to protect women entitled to benefits and their children. However, this protective purpose would be undermined if it had to be examined in each individual case whether the refuge and subsequent stay in the women's shelter was actually necessary.
The judgment is not final.
juris editorial team
Source: Press release from SG Heilbronn v. November 7, 2018: www.juris.de
4. Decisions of the state social courts and social courts on employment promotion law (SGB III)
4.1 – Rhineland-Palatinate State Social Court, judgment of October 24, 2018 – L 6 R 453/15
On the extent of a job center's claim to reimbursement from a pension insurance provider in the event of a pension payment
Guiding principle
There is no room (in this respect) for a claim for reimbursement according to Section 104 SGB
§ 34a SGB II (as amended by the law for the further development of basic security for job seekers of July 20, 2006, Federal Law Gazette I 1706) releases the requirement of personal identity and thus expands the benefits to be reimbursed.
Source: www.landesrecht.rlp.de
4.2 – SG Heilbronn, judgment of 10/16 2018 – S 1 AL 3799/16
No insolvency benefit if the employer is already insolvent
The SG Heilbronn has rejected a claim for insolvency money if an employer was already insolvent or over-indebted at the start of any operational activity.
According to the social court, the granting of insolvency benefits only protects against an employer's failure to fulfill its payment obligation if it has suffered financial collapse. It does not come into consideration if an employer was already insolvent or over-indebted at the start of any operational activity. This applies to this:
Source: www.juris.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – SG Dresden, judgment of September 3, 2018 – S 42 SO 80/15
Costs for issuing a Russian passport can be deducted from your pension as business expenses
The SG Dresden has decided that costs for issuing a Russian passport, the life certificate and the signature certification can be deducted as “business expenses” from the income from a Russian pension.
Short version:
According to the social court's opinion, the costs of obtaining a passport must be deducted from pension income in accordance with Section 82 Paragraph 2 No. 4 SGB XII. It is known in court that in order to receive a Russian pension abroad, the annual presentation of a certificate of life is required; In order to receive the life certificate, it is again necessary to identify yourself with a Russian passport. The costs incurred were therefore also causal for the receipt of the pension in April 2014. The plaintiff could also point out that the costs of obtaining the passport were included in the calculation of the standard rate. The plaintiff has a German passport and can therefore use it to fulfill the ID function and proof of identity here on site. The Russian passport is only required to regularly receive the Russian pension. However, the costs of two passports are not taken into account in the standard rate.
The verdict is not yet legally binding.
juris editorial team
Source: Press release from SG Dresden v. August 9, 2018: www.juris.de
5.2 – SG Dresden, decision by. October 8, 2018 – S 42 SO 266/18 ER
Holiday care in a familiar environment can be justified even if there are additional costs
The SG Dresden has decided that holiday care in a familiar environment may be appropriate for those in need of help who receive integration services, even if this causes additional costs.
Short version:
According to the social court's opinion, the holiday care requested by the applicant is fundamentally part of the integration assistance services. Precisely because of the existing mental disability, the applicant is entitled to continuous care in a familiar environment, at least within the framework of the expedited procedure, because he cannot currently be expected to receive isolated holiday care in the “foreign” school. In addition, it is not clear whether the current holiday care actually incurs additional costs compared to care close to home.
The decision is not yet legally binding.
juris editorial team
Source: Press release from SG Dresden v. November 9, 2018: www.juris.de
6. Decisions of the social courts on asylum law
6.1 - Hildesheim Social Court - Ref.: S 42 AY 1/18 from October 19, 2018
Norms: § 1 Para. 1 No. 4 and 5 AsylbLG, § 2 AsylbLG - Keywords: training while receiving AsylbLG benefits, exclusion of benefits, undue hardship here in favor
Guiding principle (editor)
The Lower Saxony Ministry of the Interior and Sport has since issued a decree on October 4, 2017, according to which benefits recipients according to Section 2 AsylbLG are to be granted benefits during eligible training as a hardship case according to Section 22 Paragraph 1 Sentence 2 SGB XII. Reference is made to the decision of the Lower Saxony-Bremen State Social Court (LSG) of February 13, 2018 - L 8 AY 1/18 B ER.
Source: www.anwaltskanzlei-adam.de
7. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other law books
7.1 – Obligation to cooperate: Bundestag decides to tighten the asylum law
In the future, asylum seekers will also have to participate in revocation and return procedures and the Federal Office for Migration and Refugees (BAMF) will have more rights in the event of a refusal.
After three years at the latest, an asylum decision must be examined to determine whether the conditions for revocation or withdrawal are met. If the examination shows that the requirements for recognition as a person entitled to asylum or the granting of refugee status do not or no longer exist, this must be revoked or withdrawn immediately.
juris editorial team
Source: Newsletter Federal Government Current v. November 9, 2018
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
