1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Baden-Württemberg State Social Court, decision of 09.04.2019 – L 7 AS 2024/18
Guiding principle (Editor):
The sale of a property not used by the owner is not obviously uneconomical if the achievable selling price (market value) is 80 percent of the property's value.
Source: socialcourtsability.de
1.2 – Hessian State Social Court, decision of 27 March 2019 – L 7 AS 27/19 B
The exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), in the version applicable since December 29, 2016, is constitutional.
Guiding principle (Editor):
Despite the corresponding referral by the Social Court of Mainz (decision of April 18, 2016, S 3 AS 149/16) to the Federal Constitutional Court (file number 1 BvL 4/16 there), the Senate has no constitutional concerns regarding the exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), in accordance with the established case law of the State Social Courts.
Source: socialcourtsability.de
1.3 – Hessian State Social Court, decision of 07.12.2018 – L 6 AS 503/18 B ER – legally binding
Guiding principle (Editor):
The Bulgarian applicant is entitled to preliminary legal protection for ALG II (unemployment benefit II), because even with earnings of more than EUR 160.00 net per month, it can no longer be assumed that the activity is insignificant and of completely subordinate importance (LSG Essen, 23.12.2015 – L 12 AS 2000/15 B ER).
Source: socialcourtsability.de
1.4 – North Rhine-Westphalia State Social Court, decision of 08.04.2019 – L 2 AS 1812/18 NZB – legally binding
Guiding principle (Editor):
The person entitled to benefits is obligated to submit an application for social benefits if they wish to receive exemption from broadcasting fees. If they fail to do so, a hardship case will not be recognized.
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Stralsund, Judgment of 10 April 2019 – S 7 AS 147/17
Principle (Juris):
Limited consideration of parental allowance in the case of unemployment benefit II according to § 10 para. 5 sentence 2 BEEG.
Source: www.landesrecht-mv.de
2.2 – SG Stralsund, Judgment of 10 April 2019 – S 7 AS 468/17
Principle (Juris):
Limited crediting of parental allowance as income according to § 10 para. 5 sentence 2 BEEG even after an estimated assessment notice has been issued by the tax office in the case of self-employment.
Source: www.landesrecht-mv.de
2.3 – Stuttgart Social Court, Judgment of 28 March 2019 – S 12 AS 4117/18
Free meals are considered income. For the calculation of income, it is irrelevant whether the plaintiff actually consumed the meals to which he was entitled.
Flat-rate deduction of company meals from income. Section 2 Paragraph 5 of the ALG II-V is lawful (contrary to the Berlin Social Court, judgment of March 23, 2015 – S 175 AS 15482/14).
Guiding principle (Editor)
1. Free meals provided by his employer must be taken into account as income of the household within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II).
2. For the calculation of income, it is irrelevant whether the plaintiff actually received the meals to which he was entitled (see also Strnischa, in: Oestreicher/Decker, SGB II/SGB XII, 85th supplement, Oct. 2018, § 11 SGB II, para. 92). Therefore, no investigation was necessary to determine whether this was actually the case. The clear wording of § 2 para. 5 ALG-II-VO (“provided”) does not permit any other interpretation (contra Geiger, in: Münder, LPK-SGB II, 6th ed., § 11, para. 45). A restrictive interpretation, as advocated by the Berlin Social Court (judgment of March 23, 2015 – S 175 AS 15482/14), exceeds the limits of the wording and is therefore inadmissible.
3. Finally, Section 2 Paragraph 5 of the ALG-II-VO does not unlawfully infringe upon the right to self-determination of benefit recipients (contrary to the opinion of the Social Court of Berlin, judgment of March 23, 2015 – S 175 AS 15482/14 –, which reasoned that the provision leads to the individual benefit recipient being compelled to adopt a specific diet, since the reduction in benefits associated with income crediting means that they can only make and implement their own decision regarding their meals during working hours by incurring additional financial expenses).
Source: socialcourtsability.de
2.4 – Social Court Stade, Judgment of 28 March 2019 – S 39 AS 67/18
Regarding the interpretation of Section 7 Paragraph 6 No. 2 b of the German Social Code, Book II (SGB II).
Guiding principle (Editor):
Job centers must continue to grant basic income support benefits under the German Social Code, Book II (SGB II), even after a BAföG application has been rejected during the ongoing appeal proceedings.
As explained in the explanatory memorandum to the law (Bundestag printed matter 18/8041, page 29), this regulation aims to prevent potential gaps in payments due to processing times in the area of vocational training assistance, thus ensuring that the start of vocational training is not hindered or jeopardized. Since it is not certain whether BAföG benefits will be granted by the responsible authority until the conclusion of the appeal procedure, disregarding the appeal process would again result in a payment gap that could hinder or jeopardize vocational training. Effective prevention of payment gaps in the event of a potential BAföG grant can only be achieved by ensuring that entitlement to basic income support under the German Social Code, Book II (SGB II), continues even during the ongoing appeal process.
Source: socialcourtsability.de
2.5 – SG Kassel, judgment of February 27, 2019 – S 7 AS 29/19
Principle (Juris)
1. The principles of Section 73 Paragraph 6 of the Social Court Act (SGG) also apply to the submission of powers of attorney in administrative and appeal proceedings. The authority may only demand the submission of a power of attorney from the acting attorney pursuant to Section 13 Paragraph 1 Sentence 3 of the German Social Code, Book X (SGB X), if there are objectively or temporally justified doubts about its validity.
2. The court lacks the authority to decide the matter if an objection has been unlawfully dismissed as inadmissible. The authority must be compelled to issue a decision on the merits by means of an action for annulment and performance (§ 54 para. 1, 2 SGG), filed as a subsidiary action to the action for performance, with the objection decision being set aside separately.
Source: www.lareda.hessenrecht.hessen.de
2.6 – SG Marburg, Decision of 15 March 2019 – S 10 SF 54/17 E
Principle (Juris)
1. The crediting of a business fee against a procedural fee takes effect as soon as the fees in question arise; the fulfillment of the lawyer's fee claim is irrelevant for this.
2. However, both fees may be claimed in full, as long as the total amount demanded does not exceed the sum reduced by the credit amount.
3. The same rules apply to the determination of the remuneration of the lawyer appointed by way of legal aid as to the claim against the client that has been settled.
4. Until the capping limit is reached, the receipt of a partial payment towards the business fee does not affect the enforcement of the claim for the full procedural fee against the public treasury.
Source: www.lareda.hessenrecht.hessen.de
2.7 – Social Court Düsseldorf, Judgment of 19 March 2019 – S 29 AS 4963/16, S 29 AS 1734/16, S 29 AS 4623/16 and S 29 AS 4648/17
Determining the reasonable costs of accommodation
Guiding principle (Editor):
A purely asking rent concept does not meet the requirements for a realistic assessment of the entire housing market.
The concept is based on the premise that comparing the two data sources only reveals how many benefit recipients are living in excessively expensive housing. There is no defined mechanism for inferring reasonable rents from existing rents. While there is freedom of methodology, this does not preclude the possibility that some of the necessarily collected data may not have a decisive influence on determining the reasonable rent threshold.
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – Bavarian State Social Court, decision of 08.04.2019 – L 10 AL 23/19 B ER
Guiding principle (Editor)
: 1. Payment of vocational training assistance (BAB) for Ethiopian nationals, rejected here.
2. Alternatively, the applicant could receive benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the German Social Code, Book XII (SGB XII), provided that a particular hardship could be assumed in her case (Section 22 Paragraph 1 Sentence 2 SGB XII – see also the decision of the Higher Social Court of Lower Saxony-Bremen of 13 February 2018 – L 8 AY 1/18 B ER; but see also the decision of the Higher Social Court of North Rhine-Westphalia of 19 February 2018 – L 20 AY 4/18 B ER).
Principle (Juris)
1. If a residence permit for the purpose of carrying out an asylum procedure is granted and there is a negative prognosis regarding the expectation of a permanent and lawful stay in Germany, vocational training assistance benefits for foreigners are not an option.
2. The uncertain expectation that, after the conclusion of the asylum procedure, a temporary suspension of deportation until the completion of vocational training pursuant to Section 60a Paragraph 2 Sentence 4 of the Residence Act and subsequently a residence permit pursuant to Section 18a Paragraph 1a of the Residence Act for employment for a further two years could be granted, does not in itself lead to a positive prognosis.
Source: socialcourtsability.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Saxon State Social Court, decision of 22 May 2018 – L 8 SO 121/17 B ER
Social assistance – assistance with care – inpatient care – provision of means for thickening beverages – assistance with living expenses – necessary subsistence in institutions – subsistence provided therein – care contract pursuant to Section 72 of the German Social Code, Book XI (SGB XI) in conjunction with the framework contract pursuant to Section 75 of the German Social Code, Book XI (SGB XI) – further necessary subsistence
To grant additional nutritional support for a nursing home resident.
Guiding principle (Editor)
1. Provisional assumption of the costs for a substance to thicken beverages within the framework of benefits under the German Social Code, Book XII (SGB XII).
2. In the present case, the assumption of the costs for the thickening powder as a further necessary subsistence expense pursuant to Section 27b Paragraph 2 of the German Social Code, Book XII (SGB XII) is possible, because, according to the provisions governing the provision of services, it is not to be provided as a necessary subsistence expense within the meaning of Section 27b Paragraph 1 of the German Social Code, Book XII (SGB XII) in the nursing home of the intervener.
3. The principle of subsidiarity under Section 2 Paragraph 1 of the German Social Code, Book XII (see Federal Social Court, judgment of June 30, 2016 – B 8 SO 7/15 R; judgment of May 19, 2009 – B 8 SO 32/07 R –) cannot be invoked against the claim for an order, because the joined health insurance fund has no priority obligation to provide benefits.
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Greifswald Administrative Court, 2nd Chamber, Decision of 17 April 2019, 2 B 361/19 HGW
Distribution of asylum seekers; Amendment of a residence requirement
Principle (Juris)
1. When applying Section 60 Paragraph 2 Sentence 1 No. 2 of the Asylum Act, the provisions of Article 18 Paragraph 6 of Directive 2013/EU must be observed. According to this, Member States, and thus the immigration authorities acting on their behalf, must ensure that applicants for international protection are transferred to another facility only when necessary.
2. This EU Reception Directive 2013/33 has had direct legal effect since July 2015, as it was not transposed into German domestic law until July 2015, meaning it can be enforced before any court.
Source: www.landesrecht-mv.de
5.2 – SG Berlin rules against JobCenter: Coverage of costs for private liability and household insurance, an article by lawyer Martin Felske,
Kurth Lawyers & Specialist Lawyers
Legal tip from April 18, 2019:
I had to deal with the following case – which is probably of continuing relevance – and which I took on due to my focus on social and insurance law.
Our client received benefits from the Job Center at the legally prescribed rate. The rental agreement obligated him, among other things, to take out private liability insurance and private household insurance at the beginning of the tenancy and to maintain these policies for the duration of the tenancy; he complied with this obligation.
The Job Center unsuccessfully argued that the clause was invalid and advised our client that he could violate it, rendering any termination of the tenancy by the landlord based on this invalid. This civil law argument, which was "difficult" given the housing shortage in Berlin, failed to convince the court. The Social Court accepted our arguments and ordered the Job Center to reimburse the premiums as housing costs – a ruling that remained in effect for subsequent years.
The decision discussed here: Social Court Berlin, judgment of 24.07.2017 – S 109 AS 25036/15.
Source: www.anwalt.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
