1. Decisions of the Federal Social Court on asylum law
1.1 – Federal Social Court (BSG), Judgment of 25 October 2018 – B 7 AY 2/18 R
Asylum seeker benefits – interest on a back payment – no applicability of Section 44 of the German Social Code, Book I – corresponding application of Section 291 of the German Civil Code
Guiding principle (editor):
Back payments for asylum seekers must accrue interest.
Source: socialcourtsability.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Lower Saxony-Bremen State Social Court, Judgment of 12 December 2018 – L 13 AS 111/17
Basic income support for job seekers – claim for compensation in cases of socially unacceptable behavior – authority of the job center to issue a declaratory ruling on the obligation to provide compensation in principle – socially unacceptable behavior in the case of premature consumption of an inheritance – existence of a hardship case
Principle (Juris)
1. The job center is not authorized under Section 34 of the German Social Code, Book II (SGB II) to issue a declaratory ruling on the liability for reimbursement in principle.
2. The squandering of an inheritance is to be regarded as socially unacceptable within the meaning of Section 34 of the German Social Code, Book II (SGB II).
3. When assessing which spending patterns of a non-working individual who has ceased receiving benefits under the German Social Code, Book II (SGB II) due to a substantial inheritance are to be considered socially unacceptable, the (fictitious) needs as defined by SGB II cannot be used as a basis. Instead, it is more appropriate to consider the average spending patterns of comparable individuals for whom statistical surveys (see EVS 2013) are available.
4. The mere fact that a person is receiving benefits under the German Social Code, Book II (SGB II) at the time they are called upon to reimburse costs does not constitute a case of hardship that obliges the job center to refrain from asserting the claim for reimbursement.
Source: www.rechtsprachung.niedersachsen.de
Note:
See also: Socially unacceptable behavior when an inheritance is spent prematurely
Further information: www.juris.de
2.2 – Lower Saxony-Bremen State Social Court, decision of 26 November 2018 – L 7 AS 24/18 B
Principle (Juris):
1. Only a court-approved settlement, as a procedural agreement, directly terminates the legal dispute. An out-of-court settlement does not automatically have this effect.
2. A need for legal protection for the issuance of a settlement order is regularly given in view of the provision of Section 199 Paragraph 1 No. 3 of the Social Court Act (SGG), according to which only a court settlement constitutes an enforceable title, but not an out-of-court settlement.
3. Any potential interest of the Social Court in reducing fees with regard to the legal aid remuneration to be granted to the lawyer from public funds is not a circumstance that could justify not granting the application for a settlement order.
Source: www.rechtsprachung.niedersachsen.de
2.3 – State Social Court of Saxony-Anhalt, Judgment of 22 June 2018 – L 4 AS 9/14
Principle (Juris)
1. The district of Wittenberg does not constitute a single comparison area for the purposes of applying Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). The district falls into the comparison areas of Lutherstadt Wittenberg and the "Rest of the District," meaning that the district of Wittenberg consists of two comparison areas.
2. In the comparison area of Lutherstadt Wittenberg, the reasonable value of a gross cold rent of EUR 316.20 for a two-person household determined by the defendant is not objectionable.
3. In order to derive an accurate conclusion for the lower end of the housing market segment within a so-called conclusive concept following a complete survey of the housing market, a demand analysis differentiated according to the size of the households in need must be prepared. If this results in a demand share of 38% and 39% for one-person and five-person households, respectively, which is significantly above the average (25 to 30%), it is insufficient to simply use a percentile value of 40 for these apartment sizes.
4. The municipal authority must include a corresponding provision in the guidelines on reasonable housing costs if the concept developer, in the rent survey, has determined that, due to an insufficient number of advertised rents, a comparison of the availability of apartments on the current rental market with the determined existing rent value as a reasonable value is not possible and therefore the reasonableness of the housing costs must be decided on a case-by-case basis. If the municipal authority fails to include such a provision, the administrative regulation is unlawful in this respect, and the reasonable value established for the apartment size in question is not based on a sound concept.
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, Judgment of 06.12.2018 – L 32 AS 2045/16
Guiding principle (Editor):
1. There is no entitlement to the removal of the bank statements in the sense of a deletion, because the requirements of Section 84 Paragraph 2 of the German Social Code, Book X (SGB X) are not met.
2. There is a necessity to store social data for its use in proceedings to correct a legally binding administrative act for at least up to a period of 10 years (see also Berlin-Brandenburg Higher Social Court, judgment of March 8, 2018 – L 18 AS 2312/17, paras. 20, 24; Berlin-Brandenburg Higher Social Court, judgment of March 23, 2017 – L 31 AS 359/15, paras. 12 and 23; Baden-Württemberg Higher Social Court, judgment of February 21, 2017 – L 9 AS 1590/13, para. 32; Berlin-Brandenburg Higher Social Court, judgment of April 7, 2016 – L 9 AS 682/15, para. 15; Berlin-Brandenburg Higher Social Court, judgment of January 27, 2015 – L 14 AL). 84/11, para. 75; Bavarian State Social Court, judgment of 31 March 2011 – L 15 SB 80/06, para. 41).
Source: socialcourtsability.de
2.5 – North Rhine-Westphalia State Social Court, Judgment of 08.11.2018 – L 19 AS 1182/17
Guiding principle (Editor)
1. No obligation to pay compensation on the part of the persons in need of assistance within the meaning of Section 34 of the German Social Code, Book II (SGB II), if both plaintiffs have an "important reason" for the conduct they are accused of, the existence of which already precludes their being held liable for compensation under Section 34 of the German Social Code, Book II (SGB II).
2. As a German national, the plaintiff exercised her fundamental right to freedom of movement under Article 11 Paragraph 1 of the Basic Law by entering Germany. Freedom of movement within the meaning of Article 11 Paragraph 1 of the Basic Law means the right to reside and establish one's domicile anywhere within the federal territory. This includes, in particular, entry into Germany for the purpose of establishing residence (Federal Constitutional Court, Judgment of December 17, 2013 – 1 BvR 3139/08 with further references). Article 11 paragraph 1 of the Basic Law guarantees that German nationals – such as the plaintiff and her two children – may reside and take up residence anywhere within the federal territory without hindrance from German state authority, also for the purpose of entering the federal territory (Federal Constitutional Court, decisions of 25 January 1977 – 1 BvR 210/74 –, BVerfGE 43, 203 and of 7 May 1953 – 1 BvL 104/52 –, BVerfGE 2, 266).
3. The exercise of this fundamental right in the form of entry into German territory is necessarily linked to giving up a job abroad.
4. There is no law that makes the exercise of the fundamental right to freedom of movement in the form of entry conditional on the existence of sufficient German language skills or the existence of financial means to cover living expenses or a concrete prospect of subsequent employment.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Mainz, Judgment of 15 October 2018 – S 14 AS 381/18
No claim for reimbursement of expenses in the objection decision pursuant to Section 63 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X), if discretion is exercised subsequently due to a failure to exercise discretion in the initial administrative act
Principle (Juris):
If discretion was required in deciding on an application, a failure to exercise discretion renders a decision materially unlawful. The subsequent exercise of discretion in the appeal decision is then not to be assessed under Section 41 Paragraph 1 Number 2 of the German Social Code, Book X (SGB X), but rather under Section 95 of the German Social Court Act (SGG). Consequently, in this case, the appellant cannot claim reimbursement of necessary expenses incurred in pursuing legal action under Section 63 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X).
Source: www.landesrecht.rlp.de
3.2 – Chemnitz Social Court, Judgment of 21 June 2018 – S 10 AS 1124/15 – pending before the Saxon State Social Court L 8 AS 1175/18
Exemption allowance under Section 11b Paragraph 3 of the German Social Code, Book II (SGB II) – organ donor – special sickness benefit under Section 44a of the German Social Code, Book V (SGB V)
Guiding principle (Editor):
The special sickness benefit pursuant to Section 44a of the German Social Code, Book V (SGB V) is to be treated as equivalent to earned income, i.e., the earned income allowance must be deducted from the sickness benefit that the plaintiff received because of her organ donation.
Source: socialcourtsability.de
3.3 – Gelsenkirchen Social Court, decision of 16 July 2018 – S 33 AS 1845/18 ER
Guiding principle (Editor):
Occasional shared leisure activities are not sufficient to establish a community of shared responsibility, as this is not uncommon among members of shared apartments. The same applies to the occasional purchase of shared necessities.
Source: socialcourtsability.de
3.4 – SG Berlin, judgment of December 12, 2018 – S 155 AS 7716/15
No participation grant for extracurricular language and religious instruction
Guiding principle (Editor)
1. Pupils who are receiving benefits from the job center are not entitled to participation benefits for extracurricular language and religious instruction.
2. This applies to instruction of any language and religion. Such offerings do not serve the cultural education promoted by law. The fact that instruction takes place in groups also does not satisfy the legislator's stated goal of integrating children and young people into club and community structures.
The judgment is not yet legally binding. The plaintiffs can appeal it to the Higher Social Court of Berlin-Potsdam.
juris editorial team.
Source: Press release from the Berlin Social Court dated January 18, 2019: www.juris.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – Schleswig-Holstein State Social Court, Decision of 19 December 2018 – L 3 AL 193/18 B ER – legally binding
LSG Schleswig-Holstein: BAB for Afghan asylum seeker with residence permit.
The German Social Code, Book III (SGB III), does not contain a statutory definition of when lawful and permanent residence can be expected. It is an indeterminate legal concept that is fully subject to judicial review.
Guiding principle (Editor)
1. Granting of vocational training assistance to the Afghan citizen within the framework of a balancing of interests.
2. Whether a lawful permanent residence within the meaning of Section 132 of the German Social Code, Book III (SGB III) can be expected may not depend solely on the overall protection rate of the country of origin in question (Social Court Leipzig, decision of December 6, 2018 – S 1 AL 232/18).
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – LSG Saxony-Anhalt, Judgment of 06.09.2018 – L 8 SO 2/16
Principle (Juris):
The youth welfare provider has asserted its claim for reimbursement of (subsidiary) integration assistance provided within the framework of youth welfare measures against the social welfare provider in a timely and effective manner if, due to prior involvement in the concretization of an assistance plan, the social welfare provider subsequently demands "reimbursement of costs" and a complete statement of costs is attached.
Source: socialcourtsability.de
5.2 – Schleswig-Holstein State Social Court, decision of 28 November 2018 – L 9 SO 150/18 B ER – legally binding
Principle (Juris)
1. No entitlement to benefits under the German Social Code, Book XII (SGB XII) as a loan exists because the applicant can cover her necessary living expenses from her income.
2. The applicant's expenses for her accommodation, which exceed what is reasonable, cannot be recognized as a need, even on the grounds that reducing costs is impossible or unreasonable. The applicant is capable of moving, but unwilling to do so.
Source: socialcourtsability.de
6. Decisions of the social courts on asylum law
6.1 – Social Court Bremen, Judgment of 12 February 2018 – S 38 AY 103/14
Principle (Juris):
Those entitled to benefits who receive benefits under Section 2 AsylblG in conjunction with SGB XII (analogous benefits) are to be granted income allowances under Section 82 SGB XII.
Receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG) does not in itself constitute a "justified case" within the meaning of Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII). Further factors must be considered. Therefore, simply receiving benefits under the Asylum Seekers' Benefits Act does not automatically lead to the granting of higher income allowances.
The earned income allowances of a benefit recipient according to § 2 AsylblG are determined neither directly nor analogously according to § 11b SGB II.
The legislative decision to grant allowances to an employed person entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act in conjunction with Section 82 of the Social Code Book XII does not violate Article 3 of the Basic Law, the European Convention on Human Rights (ECHR), or the International Covenant on Economic, Social and Cultural Rights (ICCPR).
Source: www.socialcourt-bremen.de
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – No socially unacceptable behavior in leaving work to care for a family member
The LSG Celle-Bremen has ruled that when examining the social unreasonableness of a job assignment within the framework of § 34 SGB II, the criteria of reasonableness laid down in § 10 para. 1 no. 4 SGB II must be taken into account.
and
7.2 – Socially unacceptable behavior following job loss due to a criminal offense
The LSG Celle-Bremen has ruled that socially unacceptable behavior exists if a crime is committed using company equipment during working hours, resulting in the loss of employment.
Source: www.juris.de and www.juris.de
7.3 – Note on: BSG 11th Senate, Judgment of 21.06.2018 – B 11 AL 13/17 R
Author: Bastian Brackelmann, Legal Secretary
Suspension of unemployment benefit entitlement in the case of severance pay: Typical consideration of the ordinary termination option
Guiding principles
1. On compliance with the ordinary notice period when concluding a severance agreement when applying the BAT and the collective agreement on rationalization protection for employees (RatSchTVAng).
2. The exclusion of an ordinary termination by the employer with the consequence of the assumption of fictitious notice periods and correspondingly longer periods of suspension of the entitlement to unemployment benefit within the meaning of Section 143a Paragraph 1 Sentence 3 SGB III aF or Section 143a Paragraph 1 Sentence 4 SGB III aF is not to be assumed even if the conditions for an operationally necessary ordinary termination are met in an individual case.
Further information: www.juris.de
7.4 – Fact check Jobcenter Kiel: Double rent, moving costs, a contribution by lawyer Helge Hildebrandt
New year, new format on social services in Kiel: "Fact Check Jobcenter Kiel." This seems necessary, because even in the 13th year of "Hartz IV"—the cursed system—the Kiel Jobcenter continues to make the same old mistakes, as if no case law had been issued regarding the SGB II regulations since 2005. Today's topic: double rent and moving costs.
In a letter dated January 14, 2019, the job center informs a client: “The job center does not cover double rents.”.
More information: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
