1. Decisions of the Federal Social Court on basic income support (SGB II)
1.1 – BSG, judgment of March 21, 2019 – B 14 AS 42/17 R
Guiding principle (Editor):
The use of child benefit to cover a child's cash needs, as provided for under maintenance law, does not preclude the consideration of child benefit not needed by the child to secure their livelihood as income of the parent under basic income support law (following BSG, judgment of 14.06.2018 - B 14 AS 37/17 R).
Source: socialcourtsability.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Lower Saxony-Bremen State Social Court, decision of 5 April 2019 – L 11 AS 668/18 NZB
Principle (Juris)
1. It has already been definitively established by the highest court that a request for review "in an individual case" (§ 44 SGB X) is also valid if, instead of a specific question of a factual or legal nature, only the administrative decision to be reviewed is specifically named (BSG, Judgment of February 13, 2014 – B 4 AS 22/13 R –, para. 15). It has also been definitively established by the highest court that an application for "review of all legally binding decisions for their legality" lacks a sufficiently specific application within the meaning of § 44 SGB X and therefore, in corresponding case scenarios, there is no obligation to conduct a substantive review (BSG, ibid.).
2. These requirements for sufficient specificity cannot be circumvented by submitting several individual applications pursuant to Section 44 of the German Social Code, Book X (SGB X), which are also general and not based on individual circumstances, with regard to practically all decisions issued to date, instead of a single general review application (see already: Lower Saxony-Bremen Higher Social Court, judgment of February 25, 2016 – L 11 AS 1392/13 –; judgment of March 12, 2018 – L 6/9 AS 54/14 –).
3. Divergence within the meaning of Section 144 Paragraph 2 No. 2 of the Social Court Act (SGG) requires a fundamental deviation from the case law of the courts mentioned in this provision. If, on the other hand, the Social Court expressly follows the case law of the higher courts, an error of law (such as a misunderstanding of higher court case law, an incorrect subsumption, or an overall inaccurate assessment) does not lead to divergence within the meaning of Section 144 Paragraph 2 No. 2 of the Social Court Act (SGG).
Source: www.rechtsprachung.niedersachsen.de
2.2 – Lower Saxony-Bremen State Social Court, decision of 4 April 2019 – L 11 AS 72/19 B ER
Principle (Juris)
1. In preliminary legal protection proceedings, it is generally not possible to compel the granting of an assurance within the meaning of Section 22 of the German Social Code, Book II (SGB II), but at most to the provisional assumption of the actual costs of accommodation and heating (KdUH).
2. The determination of the KdUH (costs of accommodation and heating) reasonableness limit is carried out in a multi-stage process (abstract reasonableness test; subsequently, concrete reasonableness test, insofar as the actual housing costs to be incurred exceed the abstractly determined reference rent).
3. If, according to the investigations of the benefit provider, only 3 apartments (= 2.73% of the apartment advertisements for the entire comparison area) or only 1 apartment in the district town (= 1% of the apartment advertisements for the district town) were clearly within the rent ceiling set by the benefit provider in the last quarter, the rent ceiling set by the benefit provider cannot be considered specifically appropriate in the preliminary legal protection proceedings.
Source: www.rechtsprachung.niedersachsen.de
2.3 – Lower Saxony-Bremen State Social Court, Judgment of 26 February 2019 – L 11 AS 235/17
Principle (Juris)
1. Driving under the influence of drugs by a taxi driver, resulting in the loss of his driver's license, passenger transport license and job, is, according to the principles of the German Social Code, Book II and Book III (SGB II and SGB III), reprehensible conduct that is generally subject to sanctions and waiting periods.
2. The mere fact that a waiting period and a sanction have been imposed does not preclude a claim for damages under Section 34 of the German Social Code, Book II (SGB II).
3. However, a claim for damages under Section 34 of the German Social Code, Book II (SGB II) is only possible in justified and narrowly defined exceptional cases, because the principle that subsistence-securing and needs-based benefits, to which there is a legal entitlement, must regularly be provided regardless of the cause of the resulting hardship and any reprehensible conduct in the past, must not be counteracted by a far-reaching, unlimited liability for compensation on the part of the benefit recipients.
4. If, as in the present case, the need for assistance under the German Social Code, Book II (SGB II) as a result of drug use only arises at the end of a multi-stage causal chain (loss of driver's license and passenger transport license, extraordinary termination of employment, insufficient entitlement to unemployment benefit I), the situation moves away from an exceptional constellation with each stage, because the plaintiff did not necessarily have to be immediately aware that his behavior would inevitably lead to the receipt of basic income support benefits under the German Social Code, Book II (SGB II).
Source: www.rechtsprachung.niedersachsen.de
2.4 – LSG Berlin-Brandenburg, Judgment of 09.05.2019 – L 34 AS 1236/18
Please sign here…, a contribution by attorney Kay Füßlein
Sometimes, the twists and turns in the proceedings are quite surprising. This doesn't necessarily mean that someone in the courtroom jumps up and testifies as a witness for the defense; sometimes it simply emerges from the case files themselves.
More information: www.ra-fuesslein.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 30 April 2019 – L 26 AS 2621/17
No copies of ID cards at the job center
Guiding principle (Editor)
: Claim for deletion of the stored copies of the plaintiff's identity card without a passport photo from the electronic file of the job center.
Source: socialcourtsability.de
2.6 – Berlin-Brandenburg State Social Court, Judgment of 21 March 2019 – L 31 AS 2727/15
Unauthorized representative; cost decision; allocation of costs
Principle (Juris)
1. In social court proceedings, there is no reason to impose the costs of the proceedings on the unauthorized legal representative, since, unlike in civil or administrative court proceedings, the plaintiff cannot be burdened with the costs of the proceedings. The plaintiff does not require the protection afforded by the possibility of a cost order against the unauthorized representative in social court proceedings.
2. Therefore, charging the unauthorized legal representative with the costs of the proceedings constitutes a “hidden abuse fee” for which there is no legal basis.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Munich Social Court, decision of 18 April 2019 – S 46 AS 785/19 ER
Three missed appointments are not automatically grounds for questioning eligibility for assistance. Obligations to cooperate alongside sanctions regulations
Guiding principle (Editor)
: 1. There are considerable doubts about the legality of the withdrawal notice because the failure to appear at three scheduled appointments alone does not mean that the eligibility requirements are no longer met within the meaning of Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I). Therefore, a prerequisite for the withdrawal is lacking.
2. The Jobcenter is not powerless in the face of the applicant's persistent non-appearance. Given the applicant's claim that they are so psychologically distressed that they cannot endure a scheduled appointment, the Jobcenter can initiate a review of their employability by requesting medical records, waivers of confidentiality, and examinations (regarding the specific requirements for discretionary benefit withdrawal in this particular situation, see Bavarian State Social Court, decision of August 31, 2012, L 7 AS 601/12 B ER, and Berlin-Brandenburg State Social Court, decision of September 19, 2018, L 34 AS 1650/18 B ER). The Jobcenter can also arrange home visits to determine whether the applicant is absent from their place of residence without authorization, pursuant to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II). If further indications of a lack of need for assistance emerge, a withdrawal of benefits pursuant to Section 66 of the German Social Code, Book I (SGB I) may also be considered.
Source: socialcourtsability.de
3.2 – Social Court Dresden, Judgment of 27 March 2019 – S 40 AS 6296/15 – legally binding
Guiding principle (Editor)
1. On the legal question of whether (advertising) costs incurred for another, not yet earned income can be deducted from other earned income.
2. The costs for the training to become a non-medical practitioner are not tax-deductible.
Source: socialcourtsability.de
3.3 – Social Court Berlin, Judgment of 10 May 2019 – S 37 AS 13511/18
Legal remedies information – electronic legal transactions – objection period
Principle (Juris)
1. The opening of electronic communication in regular exchanges with the citizen does not in itself allow for the conclusion that the authority is willing to receive secure, electronic objections (no implied dedication).
2. Neither the obligation under Section 2 EGoVG nor the version of Section 84 SGG applicable since 1 January 2018 nor Section 36a SGB 1 opens the way for secure email objections.
3. The technical possibility of receiving encrypted email objections does not make the dedication to initiating the electronic objection procedure unnecessary.
4. Instructions on legal remedies without reference to the possibility of lodging an objection in electronic form are only defective if the competent authority has expressly or implicitly opened the electronic access route.
Source: socialcourtsability.de
3.4 - SG Berlin, judgment of May 15, 2019 - S 142 AS 12605/18
Rent index 2019 - applicable immediately, an article by attorney Kay Füßlein
The values of the 2019 rent index should also be applied to current ongoing benefit cases.
The 2019 rent index was published this week. This has a direct impact on the housing and heating allowances according to Section 22 of the German Social Code, Book II (SGB II), because these are (according to widespread opinion) based on the current rent index. However, after the publication of the 2017 rent index in May 2017, it took until January 2018 for the appropriate rent to be redefined in the Administrative Regulations on Housing (AV Wohnen).
Source: www.ra-fuesslein.de
3.5 – Duisburg Social Court, decision of 12 February 2019 – S 49 AS 5042/18 ER – legally binding
Guiding principle (Editor):
Granting of benefits under ALG II without reduction by a refusal amount in relation to the cooperation obligations of a benefit recipient (here: submission of the paternity acknowledgment for a maintenance advance).
Source: socialcourtsability.de
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG NRW, Judgment of 09.04.2019 – L 9 AL 224/18
No adjustment of a severance payment for legal fees
The LSG Essen has ruled on the suspension of unemployment benefit claims, stating that legal fees for negotiating a severance payment in labor court proceedings following a conduct-related summary dismissal are not to be taken into account as a reducing factor.
Source: www.juris.de
4.2 – Hamburg Social Court, Judgment of 03.04.2019 – S 14 AL 769/16
Guiding principle (Editor)
Unemployment insurance: Entitlement to vocational training assistance for an asylum seeker with a residence permit ((compare in detail the decision of the Schleswig-Holstein State Social Court of 19.12.2018 under file number L 3 AL 193/18 B ER).
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Social Court Kassel – Case No.: S 12 AY 8/19 ER dated 17.05.2019
Legal norms: Section 4 Asylum Seekers' Benefits Act (AsylbLG), Section 86b Paragraph 2 Social Court Act (SGG) – Keywords: expedited proceedings, medical treatment, Asylum Seekers' Benefits Act (AsylbLG), diagnostics, epilepsy
Guiding principle (Editor):
1. Due to Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law, the criteria of indispensability and safeguarding of health in Section 6 Paragraph 1 Sentence 1, Second Alternative, of the Asylum Seekers' Benefits Act (AsylbLG) are to be interpreted broadly. The necessity for safeguarding health in the sense of a need for treatment that goes beyond minor illnesses is sufficient. At least for persons who are not merely staying in the Federal Republic of Germany for a short time, medical care with all services according to Sections 47 et seq. of the German Social Code, Book XII (SGB XII) or Book V (SGB V) is required. (Hessian State Social Court, Decision of July 11, 2018, L 4 AY 9/18 B ER).
2. It violates the applicant's human dignity to deny him the treatment described by the treating physicians as "urgently necessary" or "indicated" and "recommended" despite undisputed pain symptoms, even though, according to the respondent in the response to the application, this form of treatment is "common in the Federal Republic of Germany" (SG Dresden, decision of December 6, 2018 – S 20 AY 63/18 ER).
Source: Attorney Sven Adam
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
