1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – Federal Social Court (BSG), Judgment of 28 August 2018 – B 8 SO 1/17 R
Regarding the consideration of assets in integration assistance
The law firm Dr. Krüger, Schmidt & Doderer in Heilbronn states:
The Federal Social Court (BSG) addressed the question of what criteria should be used to consider assets when granting integration assistance under the German Social Code, Book XII (SGB XII) to a person who is fully employed with the help of integration assistance, in its judgment of August 28, 2018, case number B 8 SO 1/17 R.
Source: sozialgerichtsbarkeit.de and www.kanzlei-ksd.de
1.2 – Federal Social Court, judgment of March 1, 2018 (Case No.: B 8 SO 22/16 R):
The guiding principle of Dr. Manfred Hammel
§ 14 SGB IX (“clarification of jurisdiction”) also applies if the benefit case of “assisted living” exists in accordance with § 19 para. 3 SGB XII in conjunction with §§ 53 ff., 54 para. 1 sentence 1 SGB XII and § 55 para. 2 no. 6 SGB IX.
Section 14 Paragraph 1 Sentence 1 of the German Social Code, Book IX (SGB IX), in conjunction with Section 14 Paragraph 2 Sentences 1 and 2 of the SGB IX, establishes a secondary jurisdiction for the reimbursement relationship between social security institutions if the institution first contacted by the applicant is not competent outside the jurisdictional order established by Section 14 of the SGB IX, but another social security institution would actually have been competent.
Section 14 of the German Social Code, Book IX (SGB IX) establishes precisely the relationship of priority and subordination required by Section 104 of the German Social Code, Book X (SGB X) ("claim of the secondarily obligated benefit provider"), while leaving unaffected the relationship between rehabilitation providers determined by other regulations, including those that may be in a priority/subordination relationship independently of Section 14 of the German Social Code, Book IX (SGB IX).
In the case of supported living arrangements, the exclusion rule arising from Section 109 of the German Social Code, Book XII (SGB XII) does not apply. With this form of accommodation, a disabled person effectively establishes a habitual residence (gA) at the location of the supported living community within the meaning of Section 98 Paragraph 2 Sentence 1 of the SGB XII in conjunction with Section 30 Paragraph 3 Sentence 2 of the German Social Code, Book I (SGB I). Registration with the residents' registration office is not relevant for determining the habitual residence; only the actual living conditions are of decisive importance.
In contrast to institutionally provided assistance (§ 13 para. 1 / para. 2 SGB XII), the primary goal of supported living is to enable the disabled person to lead a more independent life within their own home environment. It is sufficient, but also necessary, that this assistance should facilitate independent living, allowing the disabled person to remain in their own home and thus gain the freedom to shape their own life as they see fit. Whether and how an institution or a corresponding housing project is described is irrelevant to the legal classification of the service, as is the contractual name given to this assistance. The decisive factor is always which services were actually provided, with what objective, and for how long.
Source: dejure.org
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 10 January 2019 – L 15 AS 262/16
Guiding principle (Editor):
In order to prevent opening the door to arbitrary, taxpayer-funded elective medicine, the assumption of costs for additional health-related needs under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) is only possible if there was sufficient cause for the intervention before and during the treatment in question. This means that there must have been an indication that can be verifiably established based on medical documentation (see Bavarian State Social Court, Decision of March 9, 2017 – L 7 AS 167/17 B ER –; Hamburg State Social Court, Judgment of March 19, 2015 – L 4 AS 390/10 –).
Principle (Juris)
1. On the authority of the job center to issue a second decision on the objection during court proceedings.
2. Regarding the entitlement to reimbursement of costs for non-prescription, homeopathic medicines (OTC preparations) by the SGB II benefit provider pursuant to Section 21 Paragraph 6 SGB II.
3. If the monthly claimed costs of non-prescription medications significantly exceed the amount covered by the standard allowance for healthcare, reimbursement under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) is only possible if a medical indication has been proven (following the decision of the Bavarian State Social Court of March 9, 2017 – L 7 AS 167/17 B).
Source: www.rechtsprachung.niedersachsen.de
Note:
Does the job center have to pay for homeopathy?
The LSG Celle-Bremen has ruled that, in principle, the job center does not have to pay for more medication than the health insurance company, and that strict conditions apply to exceptions.
Further information: www.juris.de
2.2 – North Rhine-Westphalia State Social Court, Judgment of 08.11.2018 – L 19 AS 240/18
Guiding principle (Editor):
1. If a landlord offsets an operating cost credit in full against rent arrears, the expenses for accommodation costs in the following month are not reduced if the beneficiary cannot realize the credit for legal reasons, which is not the case here.
2. For, in principle, a recipient of benefits is required, within the framework of the duty to help themselves pursuant to Section 2 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) (cf. Federal Social Court, judgment of 10 May 2011 – B 4 KG 1/10 R), to work towards the reversal of an unlawful set-off and to realize the claim with reference to the highest court's case law (cf. Higher Social Court of Saxony, judgments of 21 September 2017 – L 3 AS 480/12 and of 22 March 2018 – L 3 AS 907/16), even by resorting to civil litigation.
3. Therefore, despite the defendant's express indication of the invalidity of his landlord's set-off declaration, the plaintiff accepted the offsetting of the ancillary cost credit, so that a voluntary debt repayment to be assessed as income has occurred (cf. LSG Mecklenburg-Vorpommern, decision of 31.05.2018 – L 14 AS 136/17 NZB).
Source: socialcourtsability.de
2.3 – North Rhine-Westphalia State Social Court, Judgment of 15 November 2018 – L 7 AS 1035/18 – pending before the Federal Social Court – B 14 AS 1/19 R
Basic income support for job seekers – consideration and calculation of income – final decision after provisional benefit approval – claim for reimbursement – illegality of using an average income as a basis – review procedure – non-application of the shortened exclusion period
Source: socialcourtsability.de
2.4 – Hamburg State Social Court, Judgment of 10 December 2018 – L 4 AS 351/17
The assertion of a claim for compensation is unlawful in principle
Guiding principle (Editor)
1. Section 34 Paragraph 1 of the German Social Code, Book II (SGB II) does not contain any authority to assert a claim for compensation in principle by means of a declaratory judgment.
2. There is no legal basis for issuing such a declaratory ruling (see also: Social Court Augsburg, judgment of 20 November 2017 – S 8 AS 1095/17; Social Court Oldenburg, judgment of 14 September 2016 – S 47 AS 422/14; Grote-Seifert, jurisPK-SGB II, § 34 para. 57.1; contra: Social Court Braunschweig, judgment of 23 February 2010 – S 25 AS 1128/08; Schwitzky, LPK-SGB II, 6th edition 2017, § 34 para. 37). An administrative act declaring something to be lawful requires a legal basis, at least if it establishes something as lawful that the affected party has expressly declared to be unlawful (see Federal Social Court, judgment of January 31, 2012 – B 2 U 12/11 R; Federal Administrative Court, judgment of November 29, 1985 – 8 C 105/83). While an explicit statutory basis – which is not present for an administrative act establishing liability for compensation under Section 34 of the German Social Code, Book II (SGB II) – is not required, the authorization must at least be ascertainable through interpretation.
3. That is not the case here.
Source: socialcourtsability.de
Legal tip:
The following question is pending before the Federal Social Court (BSG) – lower court:
North Rhine-Westphalia State Social Court, L 7 AS 1331/17, 11.10.2018
B 14 AS 49/18 R – Is a basic income support provider authorized under Section 34 of the German Social Code, Book II (SGB II), to issue a declaratory ruling on the obligation to pay compensation only in principle?
2.5 – Hessian State Social Court, Judgment of 21 November 2018 – L 6 AS 185/18
Unemployment benefit II – accommodation and heating – reasonable accommodation costs – coherent concept – formation of a comparison area in the Werra-Meißner district – formation of two housing market types within a comparison area
Guiding principle (Editor)
1. The concept used by the basic income support provider to determine the appropriateness of accommodation costs in the Werra-Meißner district, final report of March 2014 by the company G., consulting firm for housing, real estate, urban development mbH (hereinafter: expert opinion) does not comply with the requirements established by the Federal Social Court for setting a rent ceiling.
2. The Werra-Meißner district is not suitable to serve as a single, unified comparison area in its entirety. Rather, it must be divided into at least two separate comparison areas.
Source: socialcourtsability.de
Legal tip:
See also LSG Hessen, judgment of 21.11.2018 – L 6 AS 429/16
2.6 – LSG Hessen, December 7th, 2018 – L 6 AS 503/18 B ER
Bulgarian applicant's entitlement to unemployment benefit II.
Principle (Juris)
1. The fact that the job center's lump sum and thus ultimately irrefutable doubt regarding the need for assistance, which therefore could not even call into question an entitlement to basic income support for job seekers in the main proceedings (cf. Federal Constitutional Court, Chamber Decision of May 12, 2005 – 1 BvR 569/05 –, juris, para. 30), does not preclude the issuance of a preliminary injunction.
2. Legal violations by the employer (here: failure to continue paying wages during illness) give cause for correction, but cannot, without overriding the protective nature of the relevant regulations, regularly be used as evidence that an employment relationship does not exist. The employee status within the meaning of Section 2 Paragraph 2 No. 1 of the Freedom of Movement Act/EU is not thereby called into question, so that an exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 Letter b of the German Social Code, Book II (SGB II) cannot be based on this, provided that there are otherwise no doubts as to the existence of an actual and genuine employment relationship within the meaning of the case law of the European Court of Justice.
Source: www.lareda.hessenrecht.hessen.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Düsseldorf, Judgment of 22 October 2018 – S 43 AS 2221/18
Guiding principle (Editor):
The Jobcenter will not cover the costs of attending a school graduation ceremony.
Source: socialcourtsability.de
3.2 – Altenburg Social Court, Judgment of 13 September 2018 – S 47 AS 563/17 and S 47 AS 1156/17 – legally binding
Pensions from private retirement savings contracts must be taken into account as income when calculating entitlement to benefits under the German Social Code, Book II (SGB II).
Guiding principle (Editor)
1. Regarding the crediting of monthly pension payments from private retirement savings contracts as income, here affirmed.
2. Unlike Section 82 Paragraphs 4 and 5 of the German Social Code, Book XII (SGB XII), the German Social Code, Book II (SGB II) does not provide for any special allowances for income from private retirement savings contracts.
Source: socialcourtsability.de
3.3 – Gießen Social Court, decision of August 16, 2018 (file no.: S 27 AS 531/18 ER):
Guiding principle by Dr. Manfred Hammel:
If an employable person entitled to benefits (§ 7 para. 1 sentence 1 SGB II) does not live in a household unit (§ 7 para. 3 SGB II), but lives together with other persons in a shared apartment, then, in matters of determining the appropriate costs of accommodation (§ 22 para. 1 sentence 1 SGB II), the product theory applies solely to this applicant as an individual.
If there is no contractual relationship with a roommate, but only with the landlord of the apartment in question, then the SGB II provider cannot apply the rent ceiling that was established for an apartment in which several people live, provided that these persons do not form a household together.
4. Decisions of the social courts on employment promotion (SGB III)
4.1 – Hildesheim Social Court, decision of 09.11.2018 – S 3 AL 72/18 ER – legally binding
Provision of support during vocational training; preliminary legal protection; eligible group of persons; concept of a lawful and permanent expectation of residence – overall protection rate for Guinea below 20 percent, citing LSG North Rhine-Westphalia, 06.08.2018 – L 20 AL 74/18 B ER
Guiding principle (Editor):
No provisional approval of vocational training assistance (BAB) for applicants with Guinean nationality.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Altenburg Social Court, Judgment of 06.11.2018 – S 21 SO 2538/17
Coverage of part of the costs for dental prosthetics.
Principle (Juris):
The granting of assistance in case of illness pursuant to Section 48 of the German Social Code, Book XII (SGB XII) is excluded for those insured under the industry-wide basic tariff (similarly, Bavarian State Social Court, judgment of October 21, 2016, file no.: L 8 SO 246/15); it is irrelevant whether the Association of Statutory Health Insurance Physicians (dental physicians) has fulfilled its obligation to ensure care pursuant to Section 75 Paragraph 3a of the German Social Code, Book V (SGB V).
Source: socialcourtsability.de
5.2 – SG Detmold, Decision of 21.02.2018 – S 2 SO 45/18 ER
Integration assistance is based on actual need.
An integration aide is available for the entire duration of the school day. This was the preliminary ruling of the social court in the case of a twelve-year-old severely disabled student at a comprehensive school, who suffered, among other things, from spastic partial paralysis of the legs.
Further information: sozialgerichtsbarkeit.de
6. Decisions of the State Social Courts on Asylum Law
6.1 – Schleswig-Holstein State Social Court, decision of 30 January 2019 – L 9 AY 3/19 B ER – legally binding
Principle (Juris)
1. Section 11 para. 2 sentence 1 AsylbLG is also applicable to benefit recipients who, contrary to a residence requirement, have taken up residence in another location within the area of another provider.
2. The benefit provider shall decide on the payment method for monetary benefits in the case of those entitled to analogous benefits, exercising due discretion.
Source: socialcourtsability.de
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Hartz IV: The job center is obligated to cover utility bill arrears indefinitely.
A contribution by attorney Helge Hildebrandt
can be found at: sozialberatung-kiel.de
7.2 – Guidance: Protection against discrimination for refugees
We are pleased to present to you the guide: “Protection against discrimination for refugees. Practical legal interventions for human rights protection against discrimination for refugees.” initially as a PDF file.
The work was written by Prof. Dr. jur. Dorothee Frings and published by the Paritätische Landesverband NRW together with our member organization ARIC NRW eV.
The guide was written with the aim of motivating social work professionals with refugees to design their work and advice in a way that is sensitive to discrimination and critical of racism.
It is intended to serve as an expert resource for all advice centers, enabling them to respond to existing discrimination against refugees or immigrants in a legally sound manner.
The report specifically addresses discrimination in the labor market, the housing market, in government contexts and in public spaces, in goods and services, in education and in the reception of refugees.
Janine Metelmann,
Specialist Advisor for Migration and Refugee Work
— The Paritätische NRW
Source: www.kompass-f.de
7.3 – Child benefit also for unemployed EU foreigners
The ECJ has ruled that for a person to be entitled to family benefits in the competent Member State for their children who live in another Member State, it is neither a requirement that this person is employed in the first Member State nor that they receive a cash benefit there on the basis of or as a result of employment.
Further information: www.juris.de
7.4 – Recovery of child benefits also from recipients of Hartz IV benefits
Recipients of social benefits must inform the family benefits office promptly about the cessation of their entitlement to child benefits. Otherwise, they risk having to repay the benefits even if the child benefit was already offset against the social benefits, as the Federal Fiscal Court (BFH) ruled in two published judgments (Case Nos. III R 19/17 and III R 48/17).
Federal Fiscal Court (BFH), 13.09.2018 – III R 19/17 and Federal Fiscal Court (BFH), 13.09.2018 – III R 48/17
Source: dejure.org and dejure.org
7.5 – Legal aid: No representation fee if the objection is not justified by the lawyer.
A contribution by attorney Helge Hildebrandt,
further information at: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
