1. Decisions of the Federal Social Court on basic income support for job seekers (SGB II) and on social assistance (SGB XII)
1.1 – BSG, judgment of November 28, 2018 – B 4 AS 46/17 R
Social assistance – household unit between an employable benefit recipient and a partner who is permanently and fully incapacitated for work
Guiding principle (Editor):
Entitlement to Hartz IV benefits when receiving a permanent disability pension, if a household with a person entitled to benefits under the German Social Code, Book II (SGB II) exists.
Source: www.bsg.bund.de
1.2 – BSG, Judgment of 12.09.2018 – B 14 AS 7/18 R
Final decision on benefits to secure subsistence under the German Social Code, Book II (SGB II)
Guiding principle (Editor):
A negative decision pursuant to Section 41a Paragraph 3 Sentence 4 of the German Social Code, Book II (SGB II) has no material effect and does not preclude subsequent remediation in the objection procedure.
Source: socialcourtsability.de
1.3 – Federal Social Court, judgment of July 5, 2018 (Case No.: B 8 SO 21/16 R):
Guiding principle Dr. Manfred Hammel:
In the case of a determination regarding the existence of an undue hardship within the meaning of Section 94 Paragraph 3 Sentence 1 No. 2 SGB XII as an element of the transfer of claims against a person liable for maintenance under civil law, there is a dispute concerning a social assistance law norm, which is assessed according to public law criteria.
Undue hardship is a negative condition against the transfer of claims to the social welfare provider.
However, the determination of the existence of undue hardship as a (negative) element of the transfer of claims is counterproductive if it alone does not fully enable a resolution of the dispute between the parties involved (the person receiving social assistance, the person liable for maintenance and the social assistance provider).
The wording and systematic structure of Section 94 of the German Social Code, Book XII (SGB XII) establish an inseparable connection between a conceivable maintenance claim and the existence of undue hardship within the meaning of Section 94 Paragraph 3 Sentence 1 No. 2 of the SGB XII, which precludes a final clarification of the disputed legal relationship.
According to Section 94 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII), the maintenance claim does not transfer to the social welfare provider "insofar as" the transfer would constitute an unreasonable hardship.
The (final) examination of the exclusion of a transfer of claims requires a comprehensive assessment of all circumstances of the individual case, in which, in addition to the behavior of the social assistance recipient towards the person liable for maintenance, taking into account social interests, the current economic and personal circumstances of the person liable for maintenance and the social assistance recipient must also be decisively considered.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, decision of 30 January 2019 – L 7 AS 2006/18 B ER – legally binding
Basic income support for job seekers: Exclusion of EU citizens from benefits; right of free movement as a family member as grounds for residence; proof of maintenance as a prerequisite for the right of residence;
Guiding principle (Editor):
1. The Bulgarian applicant is entitled to ALG II (unemployment benefit II), because unlike in the case of Section 3 Paragraph 1 Sentence 2 of the Freedom of Movement Act/EU, which applies to family members of non-working EU citizens within the meaning of Section 2 Paragraph 2 No. 5 of the Freedom of Movement Act/EU, the provision of maintenance sufficient to cover needs is not a prerequisite for the right of freedom of movement (consistent case law of the Senate, cf. judgment of 22 March 2018 – L 7 AS 1512/17, decisions of 2 June 2016 – L 7 AS 955/16 B ER, of 28 May 2015 – L 7 AS 372/15 B ER and of 15 April 2015 – L 7 AS 428/15 B ER; concurring decision of the Bavarian State Social Court of 19.11.2018 – L 11 AS 912/18 BER; in this sense also BVerwG judgment of 20.10.1993 – 11 C 1/93).
2. The applicant forms an intergenerational household with both her parents and her child (see, in principle, the Federal Social Court's judgment of July 17, 2014 – B 14 AS 54/13 R). The support provided to the applicant by her parents is not to be considered income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II). Furthermore, based on the provisions of Section 9 Paragraph 3 of the SGB II, the parents' income is not to be considered for the applicant, who cares for her one-year-old son.
Source: socialcourtsability.de
2.2 – LSG North Rhine-Westphalia, decision of 12 October 2018 (Case Nos.: L 6 AS 500/18 B ER and L 6 AS 501/18 B):
Regarding the affirmation of the exclusion of entitlement pursuant to Section 7 Paragraph 1 Sentence 2 No. 2a) and b) SGB II in the case of a Romanian family.
Guiding principle by Dr. Manfred Hammel:
Employee status within the meaning of Section 2 Paragraph 2 No. 1 of the Freedom of Movement Act/EU also exists if an employment relationship exists in which an employee works only a few days a week and/or only a few hours per day, but the activity is not, in its entirety, subordinate or insignificant. In such cases, a comprehensive assessment of the facts must always be carried out, taking into account working hours, the level of remuneration, the entitlement to paid leave, the applicability of continued payment of wages in the event of illness, the application of the relevant collective bargaining agreement, and the duration of the employment relationship.
The exclusion of the legally mandated and non-waivable right to vacation argues against the existence of a genuine employment relationship. This also applies if only the total number of hours to be worked per month is agreed upon. Without such an agreement, continued payment of wages in the event of short-term illness is virtually impossible to enforce.
The same applies if an employment relationship was intended from the outset to last only three months and was terminated at the end of the first month without compliance with the statutory and contractual notice period and without any apparent reason for extraordinary termination.
A job lasting only two months, with a workload of only two hours per day and a remuneration of EUR 400 per month, must be considered completely subordinate and insignificant due to its short duration.
Even an employment relationship as a cleaner with a weekly working time of twelve hours and a remuneration of EUR 400 (i.e. below the statutory minimum wage), which ended again after four months, does not exceed the threshold for the materiality of an employment relationship and for affirming employee status.
2.3 – LSG NRW, Judgment of 10.01.2019 – L 7 AS 783/15
No reimbursement of student travel costs in NRW by job centers.
Job centers are generally not required to pay students' transportation costs from the so-called Education and Participation Package. If students and their parents have forgotten to apply for reimbursement of transportation costs from the responsible school authority, the job center is not obligated to step in.
Source: www.juraforum.de and www.juris.de
2.4 – Berlin-Brandenburg State Social Court, decision of 28 January 2019 – L 18 AS 141/19 B ER – legally binding
TFEU Art. 45 – Unemployment benefit II – Union citizen – Employee status – Pregnancy – Social assistance – Balancing of interests
Guiding principle (Editor):
Applicants with Portuguese nationality are to be granted benefits taking into account a standard benefit rate of 80% of the statutory standard benefits.
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 23 January 2019 – L 18 AS 626/17 – legally binding.
Additional expenses for costly diets – Unemployment Benefit II – Organic food
Guiding principle (Editor):
Since a full diet is covered by the standard allowance, a costly diet within the meaning of Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) generally only exists in the case of a special, more expensive form of nutrition that deviates from a full diet. However, a diet consisting of organically produced foods is not, in itself, a form of nutrition that deviates from a full diet.
Source: socialcourtsability.de
2.6 – Baden-Württemberg State Social Court, Judgment of 15 February 2017 – L 3 AS 4825/16
Guiding principle (Editor):
The question of whether his membership fees for the social association of war veterans (VdK) can be considered as expenses deductible from income is answered in the negative.
According to § 11b para. 1 no. 5 SGB II, among other things, trade union contributions or contributions to professional associations are deductible, but membership fees for the VdK are not included.
Principle (Juris):
Contributions to the VdK (Social Association of Germany) are not deductible from income pursuant to Section 11b Paragraph 1 Sentence 1 No. 5 of the German Social Code, Book II (SGB II). To assess whether expenses are necessarily connected with generating income, the principles of tax law must first be applied, and then it must be examined whether the principles applicable under the SGB II lead to a different understanding. Contributions to the VdK are not subject to the provision in Section 9 Paragraph 1 Sentence 3 No. 3 of the German Income Tax Act (EStG). A corrective to this tax law assessment is not required for the purposes of the SGB II.
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Employment Promotion Law
3.1 – Baden-Württemberg State Social Court, Judgment of 21 November 2018 – L 3 AL 2273/18
The term “immediately” in Section 26 Paragraph 2 of the German Social Code, Book III (SGB III) does not imply a rigid time limit, as per the Federal Social Court (BSG) rulings of February 23, 2017 (B 11 AL 3/16 R and B 11 AL 4/16 R).
Principle (Juris):
If there is a gap of 45 days between the end of compulsory insurance due to a period of child-rearing and the receipt of maternity allowance due to a subsequent pregnancy, this can nevertheless satisfy the requirement of immediacy within the meaning of Section 26 Paragraph 2 No. 1 of the German Social Code, Book III (SGB III). Immediacy must be determined taking into account the individual case, here the inherent randomness of the commencement of maternity allowance and the protection of mother and child enshrined in Article 6 Paragraph 4 of the German Basic Law (GG), which also includes social security coverage against unemployment.
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Asylum Law
4.1 – Bavarian State Social Court, Decision of 19 November 2018 – L 8 AY 23/18 B ER
A reduction of personal needs is excluded without the provision of a benefit in kind with equivalent value – Lack of discretionary decision pursuant to Section 2 Paragraph 2 Asylum Seekers' Benefits Act (AsylbLG) – Issuance of bus ticket
Principle (Juris)
1. The decisive factor for determining how preliminary judicial protection is to be granted is the legal remedy available in the main proceedings.
2. According to Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), when accommodating persons entitled to benefits under Paragraph 1 in communal accommodation, the competent authority determines the form of benefits based on local circumstances. Paragraph 2 grants the competent authorities discretion in this matter.
3. The mere reduction of monthly benefits from €374 by the €284.97 in benefits in kind provided does not constitute a proper exercise of discretion. It is not possible to understand which benefits were reduced or replaced by benefits in kind, and by how much.
Source: socialcourtsability.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Cologne Administrative Court, decision of February 6, 2019 (file no.: 20 L 136/19 – not legally binding):
Guiding principle of Dr. Manfred Hammel:
A homeless person cannot derive any claim from the responsible regulatory authority to accommodation in a specific shelter or facility.
The provision of homeless shelters and the assignment of homeless people to these accommodations is at the discretion of the responsible municipality.
Neither the existence of a walking disability nor the occurrence of violence in a facility makes the accessibility or use of this accommodation unreasonable for a homeless person from the outset.
5.2 – Legal aid: On the increased fee for representing households receiving benefits under the German Social Code, Book II (SGB II), an article by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
5.3 – North Rhine-Westphalia State Social Court: Is the exclusion of so-called EU foreigners from SGB II benefits contrary to European law?
On 14 February 2019, the State Social Court decided to refer a case concerning SGB II benefits for Union citizens to the European Court of Justice (Case No. L 19 AS 1104/18).
The defendant job center in Krefeld denied the Polish plaintiff these benefits. Because he was only in Germany for the purpose of seeking employment, or because he only had a right of residence derived from that of his children for educational purposes, he was excluded from receiving benefits under Section 7 Paragraph 1 Sentence 2 Number 2 c) of the German Social Code, Book II (SGB II). In contrast, the Düsseldorf Social Court had already ruled that this exclusion from benefits violated European law and ordered the defendant to provide the requested benefits.
The Higher Social Court (LSG) agreed with this view. The plaintiff has a right of residence derived from the residence rights of his children within the meaning of Article 10 of Regulation (EU) 492/2011 – the Freedom of Movement Regulation. He was employed as a worker before and during their regular school attendance and effectively exercised parental responsibility for them.
Further information: www.justiz.nrw.de
Note:
This is entirely controversial – contrary to the decisions of the Thuringian State Social Court of November 1, 2017 – L 4 AS 1225/17 B ER – which is legally binding, the Rhineland-Palatinate State Social Court of August 11, 2016 – L 3 AS 376/16 B ER, the Hessian State Social Court of October 31, 2016 – L 7 AS 565/16 B ER, the Lower Saxony-Bremen State Social Court of January 15, 2016 – L 15 AS 226/16 B ER, the North Rhine-Westphalia State Social Court of July 12, 2017 – L 12 AS 696/17 B, and the Schleswig-Holstein State Social Court of February 17, 2017 – L 6 AS 11/17 B ER.
5.4 – Report of the German Social Court Conference (Deutscher Sozialgerichtstag eV) on the hearing on sanctions before the Federal Constitutional Court (BVerfG) by attorney Volker Gerloff via Facebook
Regarding the negotiations on sanctions before the Federal Constitutional Court, here is a very good report from the German Social Court Conference (Deutscher Sozialgerichtstag eV), where I have the pleasure of participating in the SGB II Commission: 94.186.214.5
The report effectively demonstrates that the statistics repeatedly presented by the Federal Government and the Federal Employment Agency are simply wrong. They claimed that sanctions only amounted to approximately 3% of benefit recipients, and that less than 1% of these were relevant to negotiations. The DSGT (German Association of Lawyers) points out that, according to the Federal Employment Agency's statistics, the actual rate of sanctioned benefit recipients is 21.7%.
www.facebook.com/RA.Volker.Gerloff
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
