1. Decisions of the Federal Social Court on social assistance (SGB XII) and basic income support (SGB II)
1.1 – BSG, Judgment of February 18, 2018 (Case No.: B 8 SO 20/16 R):
Guiding principle Dr. Manfred Hammel
1. The term “actual residence” within the meaning of Section 23 Paragraph 1 Sentence 1 SGB XII (“Social assistance for foreigners”) is to be understood in principle as a physical presence in the federal territory.
2. In principle, the German Social Code, Book XII (SGB XII) does not provide for the granting of benefits under the SGB XII even in the case of only temporary stays abroad (such as holiday trips).
3. Short-term absences during an approval period of no more than one month do not affect the existing responsibility of the social welfare provider.
4. It is therefore appropriate that a social welfare provider must accept as non-detrimental to the entitlement an interruption of actual residence based on this time frame, during which supplementary assistance for subsistence is to continue to be granted.
5. However, subsistence benefits granted for stays in Germany may not also be granted for long-term stays abroad. This applies equally to German and foreign recipients of social assistance.
1.2 – BSG, Judgment of July 5, 2018 (Case No.: B 8 SO 32/16 R):
Guiding principle Dr. Manfred Hammel
1. An analogous application of § 98 para. 2 sentence 2 SGB XII in the case of a seamless transition from a fully inpatient facility to an outpatient assisted living arrangement and back to an inpatient facility is not justifiable.
2. In such circumstances, there is no continuous stay in inpatient facilities.
3. There is a lack of spatial connection between the shared accommodation and the inpatient therapy center, especially when the apartment was rented by the person in need of assistance and not by the facility operator, and when the person with a severe addiction problem was responsible for their own lifestyle and only used professional service hours and individual sessions.
4. While it would be consistent with the principle of protecting the place of residence as the purpose of Section 98 Paragraph 2 of the German Social Code, Book XII (SGB XII), to maintain the existing responsibility of the social welfare agency of the place of origin, based on Section 98 Paragraph 5 Sentence 1 of the SGB XII, even when transitioning from outpatient assisted living to a residential care facility, this does not correspond to the current legal situation.
5. There is no unintended regulatory gap here.
6. Section 98 of the German Social Code, Book XII (“Local Jurisdiction”) establishes different regulations for local jurisdiction in cases of inpatient care here and in cases of outpatient assisted living there.
7. Section 98 paragraph 5 of the German Social Code, Book XII (SGB XII) does not refer comprehensively to Section 98 paragraphs 1 and 2 of the SGB XII, but is formulated in a way that is clearly different from Section 98 paragraph 2 of the SGB XII.
8. In this context, the legislator did not intend to completely equate the provisions on outpatient assisted living with the regulations on local responsibility for facilities.
1.3 – BSG, Judgment of August 28, 2018 (Case No.: B 8 SO 1/17 R):
Guiding principle by Dr. Manfred Hammel
1. On the neediness according to § 19 para. 3 SGB XII taking into account the assets to be used (§ 90 SGB XII) of a severely disabled applicant who claims a continuous dependence on benefits for integration assistance for disabled persons (§§ 53 ff. SGB XII) and assistance for care (§§ 61 ff. SGB XII).
2. The affirmation of a special emergency situation leading to an increase in the asset allowance pursuant to Section 1 Paragraph 1 Sentence 1 No. 1b) of the Implementing Regulation to Section 90 Paragraph 2 No. 9 of the German Social Code, Book XII (here: EUR 2,600), pursuant to Section 2 Paragraph 1 Sentence 1 of the Implementing Regulation to Section 90 Paragraph 2 No. 9 of the German Social Code, Book XII, may be justifiable in consideration of the severity and duration of the disability (here: degree of disability 100 with the granting of the disadvantage compensations "aG", "RF" and "H") as well as the other living circumstances of the applicant (here: full-time employment) (here: increase to the significantly higher asset allowance pursuant to Section 12 Paragraph 2 Sentence 1 Nos. 1 and 4 of the German Social Code, Book II).
1.4 – BSG, Judgment of August 28, 2018 (Case No.: B 8 SO 9/17 R):
Guiding principle by Dr. Manfred Hammel
1. On the assumption of the costs of necessary car repairs on the vehicle of a multiply disabled, needy person as integration assistance benefits in accordance with §§ 53 ff. SGB XII.
2. The benefits regulated in Section 10 Paragraph 6 of the Integration Assistance Ordinance (EinglHVO) for the maintenance or assumption of the operating costs of a vehicle necessary due to a disability do not require the procurement of a vehicle as stipulated in Section 8 EinglHVO, i.e., whether the disabled person is also the owner of the vehicle, nor is there a requirement that the respective disabled person can operate this car themselves.
3. Here too, the requirement to grant family-friendly benefits arising from Section 16 of the German Social Code, Book XII (SGB XII) is fully valid.
4. The knowledge of the social welfare agency required under Section 18 of the German Social Code, Book XII (SGB XII), as a prerequisite for granting benefits, merely necessitates that agency's positive knowledge of a specific case of need, not of the concrete financial need. Such knowledge exists if the responsible social welfare agency financed the conversion of a vehicle to accommodate the needs of a multiply disabled applicant as a necessary service under Sections 53 et seq. of the SGB XII, and this social welfare office was therefore aware that the incurrence of repair costs during the intended operation of this vehicle, as special maintenance costs pursuant to Section 10 Paragraph 6 of the German Ordinance on the Integration of People with Disabilities (EinglHVO), was to be expected at any time.
5. This is not a completely new, unique definition of needs that requires qualified (prior) knowledge of the social welfare provider.
6. The refusal of the social welfare office to cover workshop invoices would be unacceptable if, without the granting of benefits under Section 10 Paragraph 6 of the Integration Assistance Ordinance (EinglHVO), the continued use of the vehicle converted to be suitable for disabled persons at the expense of social assistance would be jeopardized.
1.5 – Federal Social Court (BSG), Judgment of April 25, 2018 (Case No.: B 8 SO 25/16 R):
Principle by Dr. Manfred Hammel
1. For the granting of additional needs due to the award of the disability marker "G" (§ 152 para. 4 SGB IX) pursuant to § 30 para. 1 SGB XII, the relevant point in time is not when the health-related prerequisites for the award of this disability marker are met according to the findings of the social welfare office, but rather the decisive point in time is always the date on which the assessment notice of this authority is issued as proof of such an impact (§ 21 para. 2 sentence 2 SGB X) to the social welfare agency.
2. Section 30 paragraph 1 no. 2 of the German Social Code, Book XII (SGB XII) refers to a “notice (…) or an identity card”.
3. Consequently, a claim for additional needs pursuant to Section 30 Paragraph 1 of the German Social Code, Book XII (SGB XII) is excluded for periods in which the social welfare authority has neither issued a determination notice nor a severely disabled person's identity card. Social assistance is intended, in principle, only to cover current needs and may not be granted for past periods.
4. Applicants remain free to claim additional needs due to disability by way of Section 27a Paragraph 4 Sentence 1 of the German Social Code, Book XII (“deviating standard rate determination”) by providing evidence of specific, higher expenses until the administrative act of determination by the social welfare office is formulated in accordance with Section 152 Paragraph 4 of the German Social Code, Book IX.
1.6 – BSG, Judgment of April 25, 2018 (Case No.: B 14 AS 14/17 R):
Guiding principle Dr. Manfred Hammel
1. In the case of a single parent who lives permanently with their minor child, who can cover their needs with their own income, it must be assumed that there is an independent one-person household or a “one-person community of need” with regard to the determination of the appropriate expenses for accommodation (§ 22 para. 1 sentence 1 SGB II).
2. Section 7 paragraph 3 number 4 of the German Social Code, Book II (SGB II) does not apply here.
1.7 – BSG, Judgment of April 25, 2018 (Case No.: B 14 AS 21/17 R):
Guiding principle Dr. Manfred Hammel
1. An applicant who does not belong to a household with other persons in need of assistance (§ 7 para. 3 SGB II) or who forms a household solely for himself can be considered single within the meaning of § 20 para. 2 sentence 1 SGB II.
2. This is also the case if an employable benefit recipient under the age of 25 moves in with unrelated spouses, because there is no parent-child relationship with these persons and therefore Section 7 Paragraph 3 No. 2 or 4 of the German Social Code, Book II (SGB II) does not apply, and no community of responsibility and support (Section 7 Paragraph 3 No. 3c) of the SGB II) has been established with the daughter of these spouses.
3. By moving into the apartment of these married couples, this benefit recipient under the age of 25 has, due to leaving his parents' home, completely re-established a community of need.
4. However, the requirement for a commitment as stipulated in Section 22 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) does not apply here. The mere execution of a move does not, in itself, trigger the requirement for a commitment pursuant to Section 22 Paragraph 5 Sentence 1 of the SGB II.
5. Accordingly, this assurance is not required for every move, but only before moving to accommodation for which a rental agreement is concluded.
6. This is particularly supported by the warning function of the intended conclusion of a contract for the new accommodation. This approach is entirely irrelevant in the case of a move that is not linked to entering into contractual payment obligations for the new accommodation.
1.8 – BSG, Judgment of 12 September 2018 (Case No.: B 14 AS 45/17 R):
Guiding principle Dr. Manfred Hammel
1. The recognition of a deviating, higher hot water consumption in accordance with § 21 para. 7 sentence 2, first half-sentence, first alternative SGB II does not depend on the existence of a separate consumption recording by special technical equipment (such as a consumption meter).
2. At this point, the job center must in particular carry out case-specific investigations and make findings based on these investigations.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Mecklenburg-Vorpommern State Social Court, Judgment of 26 February 2019 – L 10 AS 711/16
Principle (Juris):
A stay in an adoption center leads to exclusion from benefits under Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), if the institution assumes overall responsibility for the residents.
The institution bears overall responsibility if the residents are accountable for their entire daily routine and if financial resources are also individually distributed by the institution on specific occasions.
Source: www.landesrecht-mv.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Berlin, judgment of March 5, 2019 – S 127 AS 16902/16
Basic income support for job seekers; consideration of income; income in kind; company car; private use; one percent rule
Principle (Juris):
The income taken into account in the payroll statements according to the one percent method for the private use of a company car pursuant to Section 8 Paragraph 2 Sentence 2 in conjunction with Section 6 Paragraph 1 No. 4 of the Income Tax Act (EStG) must be taken into account as income in kind pursuant to Section 11 Paragraph 1 Sentence 2 of the Social Code, Book II (SGB II), at least if the employee has the choice of whether to use the company car privately.
Note: (The outcome differs from the judgment of the State Social Court of Saxony-Anhalt of February 26, 2016 – L 4 AS 159/12 and the judgment of the State Social Court of Baden-Württemberg – L 9 AS 2108/13, both based on the old legal situation).
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – Berlin-Brandenburg State Social Court, decision of 02.04.2019 – L 18 AL 45/19 B ER – legally binding
Vocational training assistance – asylum seekers with permitted residence – temporary injunction – balancing of interests – foreigner's entitlement to vocational training assistance
Guiding principle (Editor):
A Guinean national is entitled to vocational training assistance within the framework of the balancing of interests (cf. LSG Berlin-Brandenburg, decision of 24 January 2018 – L 14 AL 5/18 B ER).
Source: socialcourtsability.de
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – Bavarian State Social Court, decision of 19 March 2019 – L 18 AY 12/19 B ER
Principle (Juris)
1. To implement a determined restriction of entitlement, the revocation of an administrative act granting approval for the period of the restriction of entitlement is necessary.
2. The possibility of a claim by minor children to analogous benefits under Section 2 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) does not exclude the possibility of such a claim under Section 2 Paragraph 1 of the AsylbLG, but rather complements it.
3. On the standard of review in expedited proceedings before the social court.
Source: socialcourtsability.de
5.2 – Hildesheim Social Court, judgment of February 22, 2019 (Case No.: S 42 AY 3/18):
Guiding principle by Dr. Manfred Hammel:
If the Federal Office for Migration and Refugees wrongly rejects an asylum application as inadmissible, and therefore there was no legal basis for deportation from Germany to Italy, then the re-entry into the federal territory was neither an abuse of rights nor driven by the decisive intention of obtaining benefits under the Asylum Seekers' Benefits Act (AsylbLG). Section 1a Paragraph 1 of the AsylbLG therefore does not apply.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – BSG: Integration assistants for afternoon care possible.
Disabled children may have a claim against the social welfare provider for the assumption of costs for an integration assistant (school companion) as assistance for appropriate schooling, including for afternoon care services in an open all-day school.
The 8th Senate of the Federal Social Court (BSG) decided this in two proceedings on December 6, 2018 (Case Nos.: B 8 SO 4/17 R and B 8 SO 7/17 R), which, however, were referred back to the State Social Court for a final decision due to a lack of factual findings on the specific subject matter of the offers as well as their suitability and necessity for the school education of the plaintiffs.
Source: Attorney Matthias Herberg, Kucklick Börger Wolf & Söllner – dresdner-fachanwaelte.de
www.anwalt.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
