1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Mecklenburg-Vorpommern State Social Court, decision of 10 January 2019 – L 8 AS 247/18 B ER
Entitlement to unemployment benefit II, benefits for accommodation and heating, assumption of road construction contributions
Guiding principle (Editor)
1. The road construction contribution is to be covered as a one-time expense in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
2. The provision of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) does not require recourse to the interpretive aid of Section 2 of the SGB II, so that the claim pursuant to Section 22 of the SGB II is not precluded by the fact that the applicant did not seek a waiver or deferral of the road construction contribution (contrary to the Thuringian State Social Court, judgment of March 14, 2013 – L 9 AS 1302/10).
Source: www.landesrecht-mv.de
1.2 – Hamburg State Social Court, Judgment of 06.12.2018 – L 4 AS 168/16
Guiding principle (Editor)
1. No additional nutritional needs in case of lactose intolerance, because the plaintiff did not incur any increased costs, since even in the case of absolute lactose intolerance, a lactose-free whole food diet was sufficient for the plaintiff.
Source: socialcourtsability.de
1.3 – North Rhine-Westphalia State Social Court, Judgment of 15 November 2018 – L 6 AS 764/16
The job center must also cover the heating and operating cost arrears even if the applicants were not currently receiving benefits under the German Social Code, Book II (SGB II), but become in need of assistance due to the operating cost arrears.
Guiding principle (Editor):
The job center must also cover the heating and operating cost arrears even if the recipients of assistance were not currently receiving benefits under the German Social Code, Book II (SGB II), because according to Section 9 of the SGB II, the need for assistance is not determined by a continuous receipt of benefits, but by a comparison of basic income support needs and income or assets.
This assessment is carried out on a monthly basis. Therefore, an additional, singular need outside of an ongoing benefit entitlement can trigger a need for assistance within the meaning of Section 7 of the German Social Code, Book II (SGB II). The assumption that the recognition of one-off needs presupposes an ongoing need for assistance lasting several months is not only circular but would ultimately constitute a rejection of the claim for additional payment as a need relevant under basic income support law.
While this may not be desirable if it leads to short-term changes between social welfare systems, only the legislature can change this by introducing appropriate distribution rules.
Source: socialcourtsability.de
1.4 – North Rhine-Westphalia State Social Court, Judgment of 13 September 2018 – L 6 AS 2540/16
Entitlement to reimbursement of double the monthly rent as accommodation costs according to § 22 para. 1 SGB II.
Guiding principle (Editor)
1. The plaintiffs' claim is not assessed according to Section 22 Paragraph 6 of the German Social Code, Book II (SGB II), but according to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II).
2. The costs for two apartments (“double rent”) are not housing procurement costs within the meaning of Section 22 Paragraph 6 of the German Social Code, Book II (SGB II) (contrary to the prevailing opinion, cf. Higher Social Court of North Rhine-Westphalia, decision of January 21, 2015 – L 19 AS 2274/14 B; Higher Social Court of Lower Saxony-Bremen, judgment of March 31, 2014 – L 11 AS 1445/10; Berlit in LPK-SGB II, 6th ed., Section 22, marginal note 226 with further references; Luik in Eicher/Luik, 4th ed., Section 22, marginal note 223 with further references), but rather are to be attributed to the costs of accommodation and heating and therefore fall within the scope of application of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) (see also Higher Social Court of Berlin-Brandenburg, judgment of January 31, 2013 – L 34 AS 90/11; in this direction). (see, presumably, BSG judgment of 23.05.2012 – L 14 AS 133/11 R – juris para. 20, BSG judgment of 16.12.2008 – B 4 AS 49/07 R – juris para. 13, BSG judgment of 18.02.2010 – B 4 AS 28/09 R – juris para. 15).
3. The move to the new apartment was necessary for health reasons. It is not apparent that any improper conduct, particularly on the part of the plaintiff, caused the overlapping costs.
4. If even a prudent and methodical person will not give up their old apartment before concluding a new lease, this applies all the more to a single mother with two minor children.
Source: socialcourtsability.de
1.5 – LSG Munich, Judgment of 15 November 2018 – L 16 AS 346/15
Principle (Juris):
If the beneficiary uses two accommodations, costs for accommodation and heating are only granted for the apartment that the beneficiary demonstrably uses primarily for residential purposes.
Source: socialcourtsability.de
1.6 – Bavarian State Social Court, Judgment of 30 November 2018 – L 16 AS 205/16
For the deduction of business expenses (BA) in the case of self-employment.
Guiding principle (Editor):
1. The inflow of the loan remains disregarded, while the repayment of business-related loans is deductible. This is not contradicted by the Federal Social Court's (BSG) case law on the disregard of debt repayments (see, e.g., BSG, judgment of September 30, 2008, case no. B 4 AS 29/07). This case law refers to loans in the private sector (see, for a comprehensive overview, the Higher Social Court of Berlin-Brandenburg, judgment of June 12, 2015, case no. L 25 AS 3370/13).
Source: socialcourtsability.de
1.7 – Hessian State Social Court, decision of 07.12.2018 – L 6 AS 503/18 B ER
Guiding principle (Editor):
1. The Bulgarian applicant is entitled to unemployment benefit II, because, at least when an employment relationship – as in this case – lasts for several years and the employee earns income from it in a variable but nevertheless significantly higher amount than the basic allowance under Section 11b Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) in almost all months, and this is offset by a corresponding work performance, the Senate, after the summary examination required in preliminary legal protection proceedings, is of the opinion that there is much to suggest that an employment relationship establishing employee status exists (cf., in this sense, e.g., Higher Social Court of North Rhine-Westphalia, Decision of October 7, 2016 – L 12 AS 965/16 B ER –).
Source: dejure.org
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Hannover, Judgment of 20.02.2018 – pending before the Federal Social Court – B 14 AS 27/18 R
Unemployment benefit II – Accommodation and heating – Single-person household in Nienburg Weser in Lower Saxony – Exceeding the appropriateness or living space limit after the child moves out – Lack of a coherent concept
Regarding the requirements for the representativeness and validity of the data included in a coherent concept for determining reasonable accommodation costs.
Guiding principle (Juris)
: The “Concept for deriving rent ceilings for reasonable costs of accommodation pursuant to Section 22 SGB II and Section 35 SGB XII (update 2015)” of the basic income support provider of the district of Nienburg Weser is – due to a lack of representativeness and validity of the data used – not a conclusive concept within the meaning of the case law of the Federal Social Court.
Source: Juris
2.2 – Social Court Leipzig, Judgment of 7 March 2018 – S 17 AS 3339/13
Section 12 Paragraph 3 No. 6 SGB II: Use of a garden plot as a special hardship
Guiding principles (of the editorial staff/sender):
1. A departure from the principle that assets are not the comparison of assets and liabilities, but exclusively the totality of assets, is only warranted in the case of liabilities directly encumbering the asset (e.g., as a mortgage), since in such a case the asset cannot be realized without deductions (established case law of the Federal Social Court).
2. Contractual security agreements do not affect the value of the asset.
3. A particular hardship that hinders realization exists if, although there is no direct, real encumbrance on a property, protected assets would also be accessed due to a contractual security agreement when realizing the asset
Source: info also 6/2018
2.3 – SG Kiel, minutes of the meeting of 23 January 2019, S 38 AS 638/17
Regarding the non-crediting of forwarded child benefits, an article by attorney Helge Hildebrandt
If a parent forwards child benefit in a timely manner to the child who does not live in the same household, this benefit is not to be counted towards the ALG II entitlement of the forwarding parent, cf. Section 1 Paragraph 1 No. 8 ALG II-VO.
The wording of Section 1 Paragraph 1 Number 8 of the ALG II Ordinance does not specify a deadline for when child benefit must be forwarded. In any case, it cannot be offset against benefits if forwarded promptly.
The forwarding does not have to take place in the same month as the transfer by the family benefits office, i.e., in the month of receipt.
Referral to the child is equivalent to referral to the youth welfare agency based on a summons.
Lawyer Helge Hildebrandt
Source: Sozialberatung-kiel.de
Legal tip:
See also the decision of the Higher Social Court of Saxony-Anhalt of 19 October 2016 – L 4 AS 22/15 – which is legally binding, and the decision of the Higher Social Court of Saxony of 18 July 2012, L 3 AS 148/12 B ER.
A forwarding can only be said to have taken place if it occurs promptly within one month of the payment or transfer of the child benefit.
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – Lower Saxony-Bremen State Social Court, decision of 21 December 2018 – L 7 AL 163/18 B ER
Principle (Juris)
1. The reliability required for the permit to provide temporary workers presupposes the establishment and monitoring of an organizational structure that is suitable to prevent violations of existing legal regulations to the detriment of temporary workers.
2. A negative prognosis regarding unreliability can already result from the refusal to conduct an audit and, if necessary, from a change in the organizational structure existing at the time of the violations, following the acquisition of knowledge of identified or admitted violations.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Schleswig-Holstein State Social Court, decision of 04.12.2018 – L 9 SO 175/18 B ER – legally binding
Guiding principle (Editor):
No integration assistance benefits in the form of help to procure a motor vehicle.
because
Within the framework of integration assistance for people with disabilities, there is no unlimited socialization of the costs for participation in community life. Assistance is granted to the extent that non-disabled people can also satisfy corresponding needs. Not everything that would be desirable for people with disabilities can be financed within the framework of integration assistance, because even people with limited financial resources cannot fulfill all their wishes. People with disabilities should be treated equally, but not more favorably, than comparable population groups (cf. Schleswig-Holstein Higher Social Court, decision of June 19, 2014 – L 9 SO 54/12 PKH; judgment of August 8, 2018 – L 9 SO 49/14).
Principle (Juris)
1. Within the framework of integration assistance for disabled people, there is no unlimited socialization of the costs for participation in community life.
2. To shield children from experiencing and becoming familiar with the everyday influences of the environment would be contrary to the purpose of integration assistance.
Source: socialcourtsability.de
4.2 – Schleswig-Holstein State Social Court, decision of 11 October 2018 – L 9 SO 39/17 – legally binding
Guiding principle (editor):
In favor of affirming a marriage-like partnership.
2. Separate accounts do not preclude a close relationship; they are also found in marital relationships.
3. Although the duration of cohabitation is an important indicator of a marriage-like relationship, such a relationship can also exist "from the first day".
Principle
1. If the conditions for the existence of a cohabiting partnership are met, the income of the partner must also be taken into account for the calculation of the plaintiff's entitlement to basic income support benefits for reduced earning capacity and old age under Chapter Four of the German Social Code, Book XII (SGB XII).
2. The assumption of a cohabiting relationship can be justified from the first day of cohabitation.
3. The presumption rule of Section 7 Paragraph 3a of the German Social Code, Book II (SGB II) is not applicable in social assistance law.
Source: socialcourtsability.de
4.3 – Hessian State Social Court, Judgment of 14 November 2018 – L 4 SO 304/15
Principle (Juris):
1. The social welfare agency is not prevented from determining the employability of the person in need of assistance by the findings of the employment agency. The addressee of Section 44a Paragraph 1 Sentence 7 of the German Social Code, Book II (SGB II) is the SGB II benefits provider.
2. The decision of the pension insurance institution regarding the existence of the medical prerequisites of Section 41 Paragraph 3 of the German Social Code, Book XII (SGB XII) cannot have binding effect under Section 45 of the German Social Code, Book XII (SGB XII) before it is issued.
Source: www.lareda.hessenrecht.hessen.de
4.4 – Wiesbaden Social Court, Judgment of 28 November 2018 – S 29 SO 99/17
Granting of reimbursement of costs from the perspective of heir liability.
Principle (Juris)
1. The granting of integration assistance benefits is only privileged with regard to assets if a factual situation according to § 92 para. 2 sentence 1 no. 1 — 8 SGB XII exists.
2. A day center for mentally ill people constitutes a workplace comparable to a workshop for disabled people only if it is also divided into an entry, vocational training and work area.
3. In any case, no other place of employment exists if the assistance provided there mainly consists of services for participation in community life and not of measures promoting work and vocational training in the sense of services for participation in working life.
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – SG Bremen, Judgment of 19 February 2018 – S 39 AY 22/16
Costs incurred due to an acute illness can only be granted by the benefits authority in accordance with Section 4 of the Asylum Seekers' Benefits Act (AsylbLG) if the other benefit requirements, in particular the need for assistance according to Section 8 of the Asylum Seekers' Benefits Act (AsylbLG), are also met.
The principle of subsidiarity enshrined in Section 8 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) also extends to the use of (private) travel health insurance. The beneficiary is therefore obligated to claim treatment costs from their travel health insurance provider – if necessary, through legal action. Reimbursement of treatment costs by the authorities is precluded if the beneficiary refuses to claim the costs from their travel health insurance provider.
Source: www.socialcourt-bremen.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Provisional new rent limits for Kiel from 01.01.2019
Further information: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
