Tacheles Legal News Ticker Week 11/2019

1. Decisions of the state social courts on basic income support for job seekers (SGB II)

1.1 – Schleswig-Holstein State Social Court, decision of 11.02.2019 – L 5 SF 114/18 BE – legally binding

Principle (Juris):
If several court proceedings are settled in a “framework agreement” between plaintiff and defendant in such a way that the claim is withdrawn in 2 proceedings and an admission is made in 2 other proceedings, the conditions for the settlement fee according to No. 1000 VV-RVG may be met.

Source: socialcourtsability.de

1.2 – LSG Munich, decision of 04.02.2019 – L 7 AS 1014/18 B ER

Social Court Urgent Proceedings: On the evaluation of a sworn affidavit for the decision on the non-existence of a cohabiting partnership as a prerequisite for receiving benefits under Book II of the German Social Code (SGB II)

Principle (Juris)
On the affidavit as evidence in expedited proceedings.

1. A mutual intention to assume responsibility for one another and to stand up for one another can only be affirmed if cohabitation in a shared household exists. Cohabitation in a shared household is not covered by the presumption of Section 7 Paragraph 3a of the German Social Code, Book II (SGB II), but rather constitutes a prerequisite for the presumption to apply in the first place. (Editorial note)

2. A sworn statement, like all evidence, is always subject to evaluation. This applies in particular to the question of the credibility of the sworn statement's content. (Editorial note)

Source: www.gesetze-bayern.de

1.3 – Berlin-Brandenburg Higher Social Court, Judgment of January 24, 2019 – L 37 SF 101/18 EK AS WA and L 37 SF 102/18 EK AS WA

Principle (Juris)
: If a plaintiff files a motion for recusal, the comparison of active and inactive processing times – necessary for deciding whether the proceedings have been unreasonably long – depends solely on whether the motion is being processed. Whether the challenged judge would have continued the proceedings without the motion is irrelevant. The review must always be based on the actual course of the proceedings, while any hypothetical scenarios are immaterial.

Whether an effective complaint of delay exists for the original proceedings that are the subject of a compensation claim is not determined from the subjective point of view of the judge handling the original proceedings, but must be determined on the basis of objective standards.

Regarding the question of what requirements must be placed on a complaint of delay with regard to the specification of the procedure that is being criticized as being too long.

Source: socialcourtsability.de

1.4 – Berlin-Brandenburg State Social Court, decision of 20 February 2019 – L 32 AS 1023/15

Principle (Juris):
A claim brought at first instance before the appellate court, due to an inadmissible appeal as an inadmissible amendment of the claim, becomes ineffective by decision pursuant to Section 158 Sentence 2 of the Social Court Act (SGG) in accordance with Sections 202 Paragraph 1 of the Social Court Act (SGG), 524 Paragraph 4 of the Code of Civil Procedure (ZPO) (following the Federal Court of Justice (BGH), judgment of 24 October 2013, III ZR 403/12).

Source: socialcourtsability.de

1.5 – LSG Berlin-Brandenburg, decision of 14 January 2019 (file no.: L 20 AS 2222/18 B ER):

Dr. Manfred Hammel's guiding principle,
"in the near future" within the meaning of Section 3 of the Unreasonableness Ordinance (Implementing Ordinance pursuant to Section 13 Paragraph 2 of the German Social Code, Book II), does not mean that the period until the possible receipt of an old-age pension without deductions always amounts to six months, i.e., encompasses a regular benefit period (Section 41 Paragraph 3 of the German Social Code, Book II). Only if an applicant can only realize an entitlement to a standard old-age pension after six to eight months is she not entitled to request an exemption from the obligation to submit a benefit application to a pension insurance institution from the Jobcenter by referring to Section 3 of the Unreasonableness Ordinance (Section 12a Sentences 1 and 2 No. 1 of the German Social Code, Book II).

This applies particularly when, with an expected monthly old-age pension of EUR 937.95 (with a reduction of 9.9% based on an unreduced pension entitlement), it can be considered certain that this early old-age pension will be significantly higher than the applicant's need for benefits under Sections 19 et seq. of the German Social Code, Book II (SGB II).

1.6 – North Rhine-Westphalia State Social Court, Judgment of 06.12.2018 – L 7 AS 2151/17

Guiding principle (Editor)
1. On the legality of an integration decision, here affirmed for a Moroccan national.

2. The provisions of the integration decision are sufficiently specific, concrete and geared towards the goal of integration into employment (regarding these requirements, see LSG Mecklenburg-Vorpommern judgment of 03.02.2010 – L 10 AS 84/07; LSG North Rhine-Westphalia decision of 21.12.2015 – L 12 AS 1884/15).

Source: socialcourtsability.de

2. Decisions of the social courts on basic income support for job seekers (SGB II)

2.1 – SG Heilbronn, judgment of February 13, 2019 – S 7 AS 1912/17

Rent caps in Heilbronn are illegal

The rent ceilings in Heilbronn are not based on a legally sound "conclusive concept", as this concept is unsuitable for determining the limit of reasonableness.

Further information: www.juris.de

Note:
See also: Social Court overturns rent limits in the city of Heilbronn

Continue reading: www.stimme.de

3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)

3.1 – LSG Munich, Judgment of 23 January 2019 – L 10 AL 238/17

Unemployment insurance: On the question of a student's availability when registering as unemployed

Principle (Juris):
Presumption of a student's lack of availability is not refuted when registering as unemployed only for periods during semester breaks.

1. Participants in a voluntary social year or the Federal Volunteer Service are at least equivalent to employees within the meaning of Section 25 Paragraph 1 of the German Social Code, Book III (SGB III). (Editorial note)

2. To refute the legal presumption that only employment exempt from social security contributions is permitted, the pupil or student must provide a detailed description of their intended course of study or training, specifying the respective semester, the number and, in particular, the timing of the planned classes, as well as the time to be taken into account for preparation and follow-up work, travel time, and any internships. In this respect, a forward-looking assessment, not a retrospective one, is required. (Editorial note)

Source: www.gesetze-bayern.de

4. Decisions of the State Social Courts on Social Assistance (SGB XII)

4.1 – Berlin-Brandenburg State Social Court, Judgment of 07.02.2019 – L 15 SO 183/15

Integration assistance – assistive devices – manual wheelchair – electric wheelchair – supplementary benefits – private health insurance – dual coverage – “Assistance for appropriate schooling” – “Medical rehabilitation” – multiple equipment – entitlement to cash benefits

Guiding principle (Editor):
Assumption of costs by the social welfare provider within the framework of integration assistance for the purchase of an electric wheelchair and for the purchase of an active wheelchair.

Principle (Juris)
1. The entitlement to integration assistance for the remaining costs of a wheelchair, for which the supplementary benefit and the private health insurance have partially paid, is from the outset directed towards a monetary benefit, so that Section 15 SGB IX does not apply.

2. A disabled schoolchild may require either an active wheelchair or an electric wheelchair; this is not a case of double provision or multiple provision, because both have different functions.

Source: socialcourtsability.de

5. Decisions of the social courts on asylum law

5.1 – Social Court Münster, decision of February 21, 2019 (Case No.: S 19 AY 3/19 ER):

If a Lithuanian national is found to have lost his right to freedom of movement pursuant to Section 6 of the Freedom of Movement Act/EU and is granted a temporary suspension of deportation pursuant to Section 60a of the Residence Act, then this results in his fundamental entitlement to benefits pursuant to Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act in conjunction with Section 2 of the Asylum Seekers' Benefits Act.

A restrictive interpretation of the content, namely that needy EU foreigners should not in principle be covered by the regulatory material of the Asylum Seekers' Benefits Act (AsylbLG), would violate the existing reservation of law and would be materially unconstitutional, because otherwise the humane minimum standard of living for this clientele would not be guaranteed.

Section 23 Paragraph 3 Sentence 1 Number 2 of the German Social Code, Book XII (SGB XII) is not applicable by analogy to those entitled to benefits under Section 1 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) within the framework of the granting of benefits under Section 2 AsylbLG. This would render the preferential treatment under Section 2 AsylbLG largely ineffective for third-country nationals who belong to the groups of persons named in Section 1 Paragraph 1 AsylbLG.

6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes

6.1 – Higher Administrative Court of Saxony, decision of 21 February 2019 (file no.: 3 A 396/18):

Guiding principle Dr. Manfred Hammel:
The addressee and beneficiary of a service granted by a public youth welfare agency pursuant to Section 27 Paragraphs 1 and 2 of the German Social Code, Book VIII (SGB VIII) in conjunction with Section 34 of the German Social Code, Book VIII (SGB VIII) (here: the placement in a home of a refugee from Burkina Faso claiming to be unaccompanied and a minor) is solely the person entitled to parental responsibility referred to in Section 27 Paragraph 1 of the German Social Code, Book VIII (SGB VIII).

The same applies to the residential care provided to a refugee who initially presented himself to the German authorities as unaccompanied and a minor, as referred to in Section 27 Paragraph 2 of the German Social Code, Book VIII (SGB VIII). The person indirectly benefiting from this public service, who presented himself as a minor at the time of application, has no enforceable right to educational assistance.

The revocation of the benefit decision (here: due to deception of the German authorities regarding the true age of the person seeking assistance) can therefore only be declared to the person to whom this decision was issued, namely the guardian appointed by the local court for this non-German person.

6.2 – Rent deposit loans and their offsetting under the German Social Code, Book II (and Book XII), a contribution by Herbert Masslau

More information: www.herbertmasslau.de

6.3 – Refugees would be entitled to more money – Benefits for asylum seekers are to be adjusted.

Single adults are to receive €150 per month in pocket money instead of the current €135. Increases are also planned for young people and children. Young people between 14 and 17 years of age would receive €79 instead of €76, children aged 6 to 13 would receive €97 instead of €83, and children under 6 would receive €84 instead of €79.

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