1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – Federal Social Court, judgment of August 28, 2018 (Case No.: B 8 SO 5/17 R):
Guiding principle of Dr. Manfred Hammel:
A distinction between social rehabilitation services and medical rehabilitation services is not made according to the relevant service items, but according to the purpose of the service.
Medical rehabilitation services address the illness itself and its causes (§ 42 para. 1 SGB IX n. F.). Social rehabilitation services, on the other hand, aim to enable access to society for individuals who are excluded from (partial) areas of social life due to their disability, or to ensure participation for individuals who are integrated into society if it becomes apparent that they are cut off from social events and connections. The elimination or mitigation of the social consequences of a disability is central to this type of assistance, which is characterized by an individualized approach to support.
If Petö therapy aims to promote the walking, standing, and sitting abilities of a student with multiple disabilities by strengthening and loosening the joints and muscles, this measure directly addresses an existing illness and its causes. Therefore, this service does not serve the purpose of integration assistance under Sections 53 et seq., 54 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 12 No. 1 of the Integration Assistance Ordinance (EingliederungshilfeVO), which is to eliminate or mitigate the social consequences of a disability with regard to obtaining a school education.
Neither social welfare agencies nor statutory health insurance providers are legally obligated to finance so-called conductive therapy according to Petö. This is not a reimbursable medical treatment (§ 52 para. 1 sentence 1 SGB XII, § 54 para. 1 sentence 2 SGB XII).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Saxony-Anhalt, decision of 08.02.2019 – L 5 AS 674/18 NZB
Principle (Juris)
1. In the case of a summons to report pursuant to Section 59 SGB II in conjunction with Section 309 SGB III, it must be apparent that the report is intended to serve one of the purposes mentioned in Section 309 Paragraph 2 SGB III.
2. It is irrelevant whether the continued effect of a reporting requirement under Section 309 Paragraph 3 Sentence 3 of the German Social Code, Book III (SGB III) always requires that not only the purpose of the actual reporting requirement, but also the purpose of the order for its continued effect, be stated, at least in brief. In any case, if, based on the circumstances of the case, it seems unlikely that a later report could still serve the original reporting purpose, the lack of a stated purpose renders the order unlawful.
Source: socialcourtsability.de
2.2 – State Social Court of Saxony-Anhalt, decision of 07.02.2019 – L 2 AS 860/18 B ER
Requirements for self-employment – Exclusion of benefits for foreigners residing for the purpose of job seeking
Principle (Juris)
1. The unrestricted availability of a suitable transport vehicle is a minimum requirement for stable continuous commercial activity as a scrap metal dealer if the collected metal is loaded onto the vehicle and stored there until it is sold.
2. Requirements for substantiating the duration of habitual residence for the claim under Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2.3 – State Social Court of Saxony-Anhalt, Judgment of 18 October 2018 – L 5 AS 336/16 – legally binding
Guiding principle (Editor)
1. The costs for the drinking water well are unavoidable expenses according to § 22 para. 2 SGB II.
2. However, the costs for the construction of the communal well are not reasonable overall, taking into account the expenses incurred for the home during the current and the following eleven months.
Source: sozialgerichtsbarkeit.de
See also principle (Juris)
1. The guidelines of the Harz district dated August 1, 2012 and August 1, 2014 meet the requirements for a coherent concept regarding the determination of the gross rent excluding utilities. The Senate adheres to its previous case law also for housing market type IV (Harzgerode, Oberharz am Brocken).
2. When comparing unavoidable expenses for a self-occupied home with reasonable expenses for 12 months, the month in which the costs are due must be taken into account, even if they were already paid in the previous month.
2.4 – Lower Saxony-Bremen State Social Court, decision of 14 March 2019 – L 13 AS 43/19 B ER
Basic income support for job seekers – Exclusion of benefits for job-seeking EU citizens and for EU citizens without a right of residence – Continued employee status during pregnancy – European Social Security Convention
Principle (Juris)
1. An activity of more than one year within the meaning of Section 2 Paragraph 3 Sentence 1 No. 2 of the Freedom of Movement Act/EU does not exist if there are interruptions of several months between the employment relationships.
2. The case law of the Federal Social Court (BSG) on benefit entitlements of job-seeking EU citizens from EFA signatory states cannot be applied to the legal situation since December 29, 2016.
Source: www.rechtsprachung.niedersachsen.de
2.5 – Lower Saxony-Bremen State Social Court, 11th Senate, Judgment of 29 January 2019 – L 11 AS 877/18
On the question of the constitutionality of 100% sanctions.
Principle (Juris)
1. Due to the possibility of claiming benefits in kind or in cash in the case of 100% sanctions, the health insurance coverage resulting from the receipt of benefits in kind or in cash, and the possibility of rent arrears being covered (to avoid losing one's home), there are ultimately no constitutional concerns regarding a temporary, sanction-related complete reduction of unemployment benefit II.
2. Violations of obligations arising from an integration administrative act could also be sanctioned under Section 31 Paragraph 1 Sentence 1 No. 1 b) of the German Social Code, Book II (SGB II), in the version applicable until March 31, 2011. The scope of this provision was not limited to violations of obligations arising from an integration agreement.
3. In the judicial review of a sanction for the violation of obligations arising from an integration administrative act, the legality of the underlying integration administrative act must be examined incidentally if the integration administrative act has become moot due to the expiry of its validity period before it has become legally binding pursuant to Section 39 Paragraph 2 Alternative 4 of the German Social Code, Book X (SGB X).
Source: www.rechtsprachung.niedersachsen.de
2.6 – LSG Lower Saxony-Bremen, Judgment of December 18, 2018 (Case No.: L 11 AS 109/16):
Guiding principle Dr. Manfred Hammel:
A work opportunity according to § 16d SGB II is not a private-law employment relationship between the measure provider and the recipient of unemployment benefit II, which triggers an entitlement of the employee to remuneration.
To affirm the additionality within the meaning of Section 16d Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), of the activity of a passenger attendant performed by a recipient of unemployment benefit II (Alg II) at the municipal transport company, because there were and are no regular employment relationships as passenger attendants at this public transport company.
Providing such services free of charge to customers is not part of the actual range of services offered by such a business.
A work opportunity (§ 16d SGB II) is not only justified by employment that remains hidden from public view. There is no reason why a local public transport company should not be allowed to utilize (additional) services provided exclusively within the framework of work opportunities in its public image.
If the number of accompanied persons is very small compared to the total passenger volume, neither an economic interest on the part of this local transport company nor a significant potential for displacement of other providers can be justified. Implementing this measure will neither cause a weaker provider to withdraw from the market, nor (because it is free of charge) will it lead to an increase in this company's revenue or a significant improvement in its core business; in other words, it will not result in any increase in assets.
2.7 – Bavarian State Social Court, Judgment of 24 January 2019 – L 16 AS 621/17
Provisional approval of benefits under the German Social Code, Book II (SGB II) – fictitious final approval for benefit periods ending before August 1, 2016
Principle (Juris):
The transitional provision of Section 80 Paragraph 2 No. 1 SGB II is also applicable to benefit periods that ended before 01.08.2016 with regard to the fiction provision of Section 41a Paragraph 5 Sentence 1 SGB II.
Source: socialcourtsability.de
2.8 – Bavarian State Social Court, Judgment of 26 February 2019 – L 11 AS 899/18
Principle (Juris):
The status of a self-employed person, with the resulting continued right of residence, remains in effect for EU citizens if self-employment must be abandoned after more than one year due to circumstances beyond the self-employed person's control (§ 2 para. 3 no. 2 Freedom of Movement Act/EU). There is no time limit on this continued effect.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Braunschweig Social Court, judgment of February 5, 2019 (Case No.: S 41 AS 1110/17):
Principle by Dr. Manfred Hammel:
On the denial of the exclusion of a legitimate expectation of protection within the meaning of Section 45 Paragraph 2 Sentence 3 Numbers 2 and 3 of the German Social Code, Book X (SGB X) in the case of an employable person entitled to benefits (Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II)), if this person is intellectually completely incapable of intentionally or grossly negligently providing false information when applying to the job center or of recognizing that the approval notices of the SGB II provider were erroneous from the outset (here: if the applicant had no awareness of the existence of any insurance policies or it was hardly possible for her to differentiate between different types of insurance or to grasp their significance).
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – Lower Saxony-Bremen State Social Court, Judgment of 26 February 2019 – L 7 AL 122/17
Matters concerning the Federal Employment Agency
Principle (Juris):
In the case of a fictitious classification for the amount of unemployment benefit according to § 152 SGB III, the previous professional qualification is irrelevant if it dates back several years, a self-employed activity based on it was abandoned 13 years ago in favor of unskilled work and the job profile has fundamentally changed since then, so that qualification group IV must be applied.
Source: www.rechtsprachung.niedersachsen.de
4.2 – Social Court Leipzig, decision of December 6, 2018 (Case No.: S 1 AL 232/18 ER):
Guiding principle by Dr. Manfred Hammel:
The corresponding application of the German Social Code, Book XII (SGB XII), as stipulated in Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), also refers to the exclusion from benefits pursuant to Section 22 Paragraph 1 Sentence 1 of the SGB XII. The entire scope of the SGB XII is fundamentally included in this and is not superseded by more specific provisions of the AsylbLG.
The Asylum Seekers' Benefits Act (AsylbLG) does not contain any independent regulation for the exclusion of benefits during vocational training.
Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) aims to keep social assistance free from the financial burdens of educational support, which is fully valid with regard to persons entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG).
Only recipients of basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) can receive this support even if they begin vocational training. In this case, the exclusion provision corresponding to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) does not apply.
For the applicability of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), it is of decisive importance whether the training undertaken can, by its nature, lead to the granting of benefits under the Federal Training Assistance Act (in the case of predominantly school-based training) or under the German Social Code, Book III (SGB III) (in the case of predominantly company-based practical training).
Vocational training as a retail sales clerk is eligible for funding under Section 57 Paragraph 1 of the German Social Code, Book III (SGB III), which is why the exclusion of entitlement pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) applies here. This also applies to training-related or training-related needs such as accommodation costs, living expenses covered by the standard allowance, and general training needs (learning materials and books).
Here, an entitlement to vocational training assistance pursuant to Section 56 Paragraph 1 of the German Social Code, Book III (SGB III) can be affirmed, especially considering the aspect of promoting the integration of the Afghan applicant (despite an uncertain residence perspective) into German society and the labor market.
Note: See also:
Afghan refugee receives vocational training allowance
The Social Court of Leipzig has ordered the Federal Employment Agency, by means of a preliminary injunction, to grant provisional vocational training assistance to an Afghan refugee.
The decision is not legally binding.
juris editorial team
Source: Press release of the Leipzig Social Court No. 1/2019 dated March 28, 2019
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Note on: BSG 11th Senate, ECJ referral of 23 October 2018 – B 11 AL 9/17 R
Author: Prof. Dr. Yasemin Körtek, Attorney at Law and Specialist in Social Law
Referral to the ECJ regarding the interpretation of Article 62 of Regulation (EC) No 883/2004 concerning the calculation of unemployment benefits
Guiding Principles
1. Is Article 62(1) of Regulation (EC) No 883/2004 in conjunction with Article 62(2) of Regulation (EC) No 883/2004 to be interpreted as meaning that, in the case of unemployment of a worker, the competent institution of the Member State of residence must take into account the remuneration which the person concerned received during his or her last employment in the territory of that institution when calculating benefits, even if, under the national legislation applicable to the competent institution for unemployment support, this remuneration cannot be taken into account due to insufficient duration of the remuneration and a fictitious calculation of benefits is provided for instead?
2. Is Article 62(1) of Regulation (EC) No 883/2004 in conjunction with Article 62(2) of Regulation (EC) No 883/2004 to be interpreted as meaning that, in the case of unemployment of a worker, the competent institution of the Member State of residence must take into account the remuneration which the person concerned received during his or her last employment in the territory of that institution when calculating benefits, even if, under the national legislation applicable to the competent institution, this remuneration may not be included as a basis for calculating benefits in the reference period due to a lack of timely accounting and a fictitious calculation of the benefit is provided for instead?
Continue reading on Juris: www.juris.de
5.2 – Unemployment Benefit II for Low-Income Earners and the Unemployed. 11th Edition 2019 – The Paritätische
Unemployment benefit 2
More information: www.der-paritaetische.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
