1. Decisions of the Federal Social Court on basic income support for job seekers (SGB II)
1.1 – BSG, judgment of January 30, 2019 – B 14 AS 41/18 R
Unemployment benefit II – accommodation and heating – reasonable accommodation costs – coherent concept of the basic income support provider – definition of comparison areas for the rural district of Segeberg – creation of housing market types – data collection – determination of the rent ceiling
Guiding principle (Editor):
It is not permissible for a job center, which considers the entire district as a single comparison area, to divide the towns and municipalities within this comparison area into several housing market types with different affordability limits. There is no legal basis for this division; in particular, the creation of housing market types cannot alter the prerequisites for establishing or the legal consequences of a comparison area. Furthermore, the present proceedings lack a substantive justification for the individual housing market types.
Source: www.bsg.bund.de
Note:
Court makes relocations easier for Hartz IV recipients
Job centers cover rent costs for the unemployed according to fixed calculations. Several long-term unemployed people sued against the high hurdles involved in moving – and have now won their case at the highest court.
More information: www.mdr.de
1.2 – BSG, judgment of January 30, 2019 – B 14 AS 11/18 R
Unemployment benefit II – accommodation and heating – reasonable accommodation costs – coherent concept of the basic income support provider – definition of comparison areas for the Salzland district
Guiding principle (Editor):
The Salzland district, with an area of 1,426.76 km² and 203,785 inhabitants, is not a uniform comparison area, as it does not represent a "homogeneous living space" within the meaning of the case law of the Federal Social Court (BSG) due to structural differences.
Source: www.bsg.bund.de
Legal tip:
See also the judgments of the Federal Social Court (BSG) of January 30, 2019 – B 14 AS 10/18 R (Harz district) and B 14 AS 12/18 R (Harz district)
1.3 – BSG, judgment of January 30, 2019 – B 14 AS 24/18 R
Establishment of comparison areas within the Börde district – judicial review
Guiding principle (Editor):
There is no legal basis for the different rent ceilings. A separate comparison area must be established for each set limit.
Source: www.bsg.bund.de
1.4 – BSG, Judgment of 12.09.2018 – B 14 AS 36/17 R
Guiding principle (Editor):
The compensation paid to members of a Berlin district assembly is neither a designated income exempt from consideration as income, nor is the recipient exempt from providing proof of expenses when claiming deductions exceeding the basic tax allowance.
Source: socialcourtsability.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Hamburg State Social Court, Judgment of 20 June 2017 – L 4 AS 128/15
Guiding principle (Editor):
Affirmation of an additional need according to § 21 para. 6 SGB II for an average of 100 euros in medical costs per month that are not covered by the health insurance.
Source: socialcourtsability.de
2.2 – Hamburg State Social Court, Judgment of 10 December 2018 – L 4 AS 431/16
Guiding principle (Editor):
On the denial of a community of need, because the legally untrained plaintiff cannot be faulted for not interpreting the term "single" when submitting his application for benefits in the sense of a community of need or a community of support and responsibility according to the German Social Code, Book II (SGB II), but rather in the sense of general usage.
Source: socialcourtsability.de
2.3 – Berlin-Brandenburg State Social Court, decision of 14 December 2018 – L 34 AS 2224/18 B ER
Guiding principle (Editor):
Section 50 Paragraph 4 Sentence 1 SGB X applies to the limitation period for reimbursement claims.
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision of 17 December 2018 – L 31 AS 2158/18 B ER
Accommodation costs – Adequacy – Impossibility of relocation – Illness
Legal principle (Juris):
Health problems must be treated with medical means to prevent them from worsening. These health problems do not automatically give rise to an entitlement to social benefits under Book II of the German Social Code (SGB II), in this case, housing costs (KdU), which are generally not granted.
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, decision of 06.12.2018 – L 31 AS 402/18 NZB – legally binding.
Regarding the question of whether the income tax arrears payment can be deducted as a necessary expense associated with generating income pursuant to Section 11b Paragraph 1 Sentence 1 No. 5.
Guiding principle (Editor):
Double consideration of amounts pursuant to Section 11b Paragraph 1 Sentence 1 No. 5 of the German Social Code, Book II (SGB II) (as an amount actually paid when adjusting income for necessary expenses and subsequently as a flat-rate deduction from this adjusted income) is not permissible (contra: Social Court Chemnitz, judgment of May 25, 2016 - S 35 AS 3984/14).
Source: socialcourtsability.de
2.6 – Berlin-Brandenburg State Social Court, decision of 12 December 2018 – L 31 AS 2200/18 B ER – legally binding
Clarification of the facts – weighing of consequences – applicant's duty to provide evidence
Principle (Juris):
The jurisprudence of the Federal Constitutional Court on the possibility of deciding by means of a balancing of interests in preliminary legal protection proceedings cannot in any way lead to a kind of converse conclusion that an attempt to clarify the factual and legal situation in preliminary legal protection proceedings is not even made.
Source: socialcourtsability.de
2.7 – North Rhine-Westphalia State Social Court, decision of 29 November 2018 – L 21 AS 1116/18 B – legally binding
Section 66 paragraph 1 sentence 1 of the German Social Code, Book I (SGB I) does not authorize the withdrawal or denial of social benefits to a person who has not violated any duty to cooperate.
Guiding principle (Editor)
: The withdrawal decision is unlawful because Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I) may not, from the outset, authorize a withdrawal or denial decision against persons who have not themselves violated any duty to cooperate, but who live in a household unit within the meaning of Section 7 Paragraph 3 of the German Social Code, Book II (SGB II) with another person who has violated their own duty to cooperate, or whose entitlement to social benefits is otherwise dependent on circumstances that are based on the person obligated to cooperate (cf. Schleswig-Holstein Higher Social Court of June 21, 2016 – L 6 AS 121/13; Potsdam Social Court of April 9, 2014 – S 40 AS 1288/11). For such an attribution, the necessary normative basis is likely lacking (Zieglmeier, NZS 2012, 135, 137 with further references; regarding sanctions, see BSG of 02.12.2014 – B 14 AS 50/13 R).
Source: socialcourtsability.de
2.8 – North Rhine-Westphalia State Social Court, decision of 22 November 2018 – L 19 AS 1478/18 NZB – legally binding
The legal question is whether a person obligated to provide information pursuant to Section 60 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), has a claim for reimbursement of expenses pursuant to Sections 60 Paragraph 2 Sentence 2 of the SGB II and 21 Paragraph 3 Sentence 4 of the German Social Code, Book X (SGB X).
Guiding principle (Editor):
1. In Section 60, paragraphs 2 and 4 of the German Social Code, Book II (SGB II), the corresponding application of Section 21, paragraph 3, sentence 4 of the German Social Code, Book X (SGB X) is expressly stipulated in sentence 2 for the persons obligated to provide information regulated therein (persons obligated to pay benefits and maintenance, custodians of assets or property, partners, custodians of assets or property of the partner). However, it does not exclude those obligated to pay maintenance from the claim for reimbursement of expenses under Section 21, paragraph 3, sentence 4 of the SGB X (see also Steinmeyer in Gagel, SGB II, 70th supplement, June 2018, Section 60, marginal note 34; Technical Instructions of the Federal Employment Agency, Section 60 SGB II, marginal note 60.9; contra Blüggel in Eicher/Luik, SGB II, 4th edition 2017, Section 60, marginal note 50).
2. In matters relating to maintenance obligations, the basic income support provider may, pursuant to Section 60 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II) in conjunction with Section 1605 Paragraph 1 Sentence 2 of the German Civil Code (BGB), demand that a person obligated to provide information regarding the amount of their income submit proof of income (Federal Social Court, Judgment of February 24, 2011 – B 14 AS 87/09 R). The claim for reimbursement of expenses under Sections 60 Paragraph 2 Sentence 2 SGB II and 21 Paragraph 3 Sentence 4 of the German Social Code, Book X (SGB X) is governed by the provisions of the German Act on the Remuneration of Experts and Witnesses (JVEG). Section 3 JVEG regulates the granting of an advance payment. Accordingly, upon application, a reasonable advance payment must be granted if the eligible person has incurred or is expected to incur significant travel expenses or other costs, or if the expected remuneration for partial services already rendered exceeds €2,000.
Source: socialcourtsability.de
2.9 – North Rhine-Westphalia State Social Court, Judgment of 21 June 2018 – L 7 AS 834/16 – pending before the Federal Social Court – B 14 AS 42/18 R
Can a retroactive pension payment be considered as income in the subsequent determination of needs based on the legal principle of Section 40 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 48 Paragraph 1 Sentence 3 of the German Social Code, Book X (SGB X), pursuant to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if the retroactive pension payment for the past was paid outside the period of legal dispute?
Guiding principle (Editor):
Payments from residual debt insurance are not to be counted as income.
Guiding principle (Editor)
1. Payments of residual debt insurance amounts are not considered income.
2. The insurance benefits from the residual debt insurance are not to be regarded as readily available means for securing one's livelihood, since the payment of the amounts was intended only for settling the loan installments and the actual cooperation between U-Bank and U-Insurance ensured that the funds could not be used for securing one's livelihood.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Cottbus, Decision of 14 January 2019 – S 27 AS 23/19 ER
Guiding principle by attorney Dr. Lehmann:
Accommodation costs must be granted regardless of the question of the permissibility of residential use under building regulations.
Guiding principle Dr. Manfred Hammel
In connection with the granting of benefits for accommodation and heating (§ 22 para. 1 sentence 1 SGB II), it must always be assumed that a person claiming benefits under the SGB II actually uses accommodation.
The registration law, which is hardly accessible to actual scrutiny, is largely irrelevant for assessing eligibility for benefits under the German Social Code, Book II (SGB II).
The job center will only recognize housing costs for a single accommodation that is actually used by the person entitled to benefits.
Building regulations and public order regulations are of secondary importance here, provided that the property is actually being used as accommodation. For the definition of accommodation in Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), it is not decisive whether the permanent use as living space complies with public order regulations. This only changes if the responsible public order authority has already intervened and prohibited the use as living space.
3.2 – 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.
Source: socialcourtsability.de
4. Decisions of the social courts on employment promotion (SGB III)
4.1 – Social Court Karlsruhe, Judgment of 11 December 2018 – S 4 AL 1712/18
Professional development, further training bonus, interim bonus also in the case of a staggered final examination in an external examination
Principle (Juris)
1. An entitlement to a bonus pursuant to Section 131a Paragraph 3 No. 1 of the German Social Code, Book III (SGB III) for passing an intermediate examination exists – if the other requirements are met – even if the training regulations do not provide for an intermediate examination, but rather a staggered final examination (GAP).
2. The exclusion of participants in preparatory courses for the external examination from entitlement in the technical instructions of the Federal Employment Agency is invalid.
3. The principle that claims regulated by a formal law cannot be reduced by an official directive of an authority (cf. BSG, judgment of September 7, 2010 – B 5 KN 4/08 R –, juris-Rn. 45) also applies if the specific scope of a regulation in a formal law can only be determined from the legislative materials.
Source: socialcourtsability.de
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – Lower Saxony-Bremen State Social Court, decision of 29 November 2018 – L 8 SO 134/18 B ER
Regarding the granting of integration assistance to foreigners pursuant to Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII)
Principle (Juris)
1. The two hardship provisions according to § 23 para. 3 sentence 6 half-sentence 1 SGB XII and half-sentence 2 of the provision can be applied concurrently.
2. The hardship provisions under Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII) can also be invoked by those entitled to benefits under Section 23 Paragraph 3 Sentence 7 of the SGB XII. Therefore, for this group of people, not only the benefits listed in Section 23 Paragraph 1 Sentences 1 and 2 of the SGB XII are available, but also, among other things, integration assistance benefits for disabled persons (Section 23 Paragraph 3 Sentence 6, first half-sentence, of the SGB XII in conjunction with Section 23 Paragraph 1 Sentence 3 of the SGB XII).
3. The discretion (for selection) opened up pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) is regularly reduced to zero if the particular hardship pursuant to Section 23 Paragraph 3 Sentence 6 Half-Sentence 1 of the German Social Code, Book XII (SGB XII) results from the disability or the disability-related circumstances of the need for integration assistance.
Source: www.rechtsprachung.niedersachsen.de
5.2 – Hessian State Social Court, decision of 11 May 2018 – L 4 SO 19/18 B ER – legally binding
Guiding principle (Editor)
: The question of how, in cases of inpatient stays, the scope of application of integration services according to §§ 53 ff. SGB XII is to be substantively distinguished from that of assistance for care according to §§ 61 ff. SGB XII depends decisively on the concept of the institution operator and the primary purpose pursued with the stay.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on the Child Supplement
6.1 – Lower Saxony-Bremen State Social Court, Judgment of 17 December 2018 – L 7 BK 10/17
Matters pursuant to Section 6a BKGG
1) The case law of the Federal Social Court (BSG) cannot be followed, namely that an application for child supplement pursuant to Section 6a BKGG simultaneously contains an application for benefits under Book II of the German Social Code (SGB II).
2) The payment of housing benefit is, by default, allocated to the month for which this benefit has been granted, irrespective of the actual receipt of the funds.
3) Section 11 paragraph 5 sentence 4 BKGG does not apply to approval periods before 1 August 2016.
Source: www.rechtsprachung.niedersachsen.de
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Note on: LSG Chemnitz 7th Senate, Judgment of 08.11.2018 – L 7 AS 1086/14
Author: Tammo Lange, RiSG
Publication date: January 31, 2019
Cancellation and reimbursement of benefits under the German Social Code, Book II (SGB II), when income from criminal offenses is taken into account
Guiding principles
1. Funds that flow into the account of the benefit recipient from a criminal offense (here: fraud from eBay sales) are to be counted as income and can lead to a justified revocation of the benefit award pursuant to Section 48 Paragraph 1 Sentence 2 No. 3, 4 SGB X or Section 45 Paragraph 2 Sentence 3 No. 2, 3 SGB X.
2. On the distinction between income and wealth.
3. Funds obtained through criminal activity are not inherently linked to a specific repayment obligation at the time of receipt. Upon booking the funds, the beneficiary becomes the sole holder of the claim to payment and has sole control over the funds.
Continue at Juris
7.2 – No protection from deportation for adult, single and healthy Afghans
The Higher Administrative Court of Lüneburg has ruled that an adult, single, healthy Afghan of Hazarian ethnicity and Shiite religious affiliation, who left Afghanistan as a child and grew up in Iran, is not entitled to protection from deportation.
OVG Lüneburg v. January 29, 2019 – 9 LB 93/18
Further information: www.juris.de
7.3 – Bavaria: Hartz IV recipients receive family allowance back from the federal government
Withheld family allowance for Hartz IV recipients will be repaid
The months-long dispute between the federal government and the Free State of Bavaria over family allowance payments for Bavarian recipients of Hartz IV benefits has now been settled. "We have now reached a compromise that we can both live with," said Social Affairs Minister Kerstin Schreyer (CSU). This clarifies that recipients of Hartz IV will also receive the family allowance.
More information: www.augsburger-allgemeine.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
