1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Mecklenburg-Vorpommern State Social Court, decision of 13 May 2019 – L 14 AS 85/19 B ER
Principle (Juris)
If there are obvious errors in the data evaluation and therefore a coherent concept is lacking, the rent ceilings of a housing cost guideline cannot be taken into account even in preliminary legal proceedings; the maximum values to be applied provisionally are the values of the housing benefit table plus a safety margin of 10% and heating costs according to the relevant heating cost index.
Source: www.landesrecht-mv.de
1.2 – North Rhine-Westphalia State Social Court, Judgment of 08.02.2019 – L 21 AS 1881/18 – legally binding
The plaintiff is not entitled to reimbursement of cable usage fees under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) and Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
Guiding principle (Editor)
According to the Federal Social Court's (BSG) jurisprudence, the assumption of cable TV costs as part of housing expenses is therefore only possible if the recipient is legally obligated to pay them under the rental agreement, as otherwise they would be forced to cover the cable fees from the flat-rate allowance under Section 20 Paragraph 1 of the German Social Code, Book II (SGB II), even if they do not wish to use this form of information gathering. This would potentially constitute an infringement of Article 5 Paragraph 1 Sentence 1 of the German Basic Law (BSG, judgment of February 19, 2009 – B 4 AS 48/08 R).
If the person in need of assistance voluntarily bears the costs, for example, to obtain a certain higher standard of living, these are not considered housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). Only expenses that are legally and factually linked to the accommodation are to be provided as benefits under Section 22 SGB II. It is undisputed that no such obligation exists in this case according to the terms of the rental agreement.
Source: socialcourtsability.de
1.3 – LSG Munich, decision of 14.05.2019 – L 16 AS 293/19 B ER
Substantiation by sworn affidavit in an application for an order suspending the effect of an action
Principle (Juris)
1. In preliminary legal protection proceedings, the appropriate type of application against a decision that revokes benefits definitively granted under the Second Book of the Social Code (SGB II) and grants them in a lower amount, and against a withdrawal decision pursuant to Section 66 of the First Book of the Social Code (SGB I), is an application for an order of suspensive effect pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Courts Act (SGG).
2. A revocation notice that cancels an initially unlawful, final approval decision due to undisclosed income cannot be based on Section 40 Paragraph 4 of the Social Code, Book Two (SGB II).
3. To establish credibility pursuant to Section 86b Paragraph 2 Sentence 4 of the Social Courts Act (SGG) in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), it is insufficient to merely swear an oath that no readily available funds are available. The question of whether the income constitutes "readily available funds" is a legal assessment, the examination of which is reserved to the Jobcenter.
Source: www.gesetze-bayern.de
1.4 – Berlin-Brandenburg State Social Court, Judgment of 30 April 2019 – L 20 AS 1122/18 – Appeal allowed
Obligation of the plaintiff to apply for an early retirement pension – Federal Voluntary Service
Guiding principle (Editor)
The Senate does not follow the opinion of the 29th and 14th Senates of the Berlin-Brandenburg State Social Court in their decisions of August 28, 2015 (Case No.: L 29 AS 1604/15 B ER) and October 6, 2016 (L 14 AS 2033/16 B ER), according to which the commencement of a federal voluntary service constitutes an unfairness in applying for a pension under Section 2 of the Unfairness Ordinance.
Source: socialcourtsability.de
1.5 – Lower Saxony-Bremen State Social Court, Judgment of 22 May 2019 – L 13 AS 207/18 ZVW
Basic income support for job seekers – additional needs due to decentralized hot water generation – hot water allowance – differing needs – calculation
To determine any additional hot water requirements exceeding the flat-rate hot water charge.
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Osnabrück Social Court, Judgment of 16 April 2019 – S 16 AS 245/18
Basic income support for job seekers – final rejection of benefits after provisional approval due to violation of documentation and information obligations – applicability of Section 41a Paragraph 3 Sentence 4 of the German Social Code, Book II (SGB II) to benefit periods ending before August 1, 2016
Guiding principle (Editor)
Restriction of the applicability of Section 41a SGB II for benefit periods that ended before 01.08.2016 (contrary to BSG, judgment of 12.09.2018, B 4 AS 39/17 R).
Source: socialcourtsability.de
2.2 – SG Würzburg, Judgment of 06.05. 2019 – S 18 AS 455/18
Guiding principle by Attorney Christopher Richter LL.M. Eur
Childcare allowance is to be credited against the standard benefit under SGB II (based on the ruling of the Social Court of Munich, but contrary to the ruling of the Social Court of Bayreuth).
Source: www.anwaltskanzlei-wue.de
A notice:
Social Court Munich, judgment of 26 October 2018 – S 46 AS 998/18 – considers it to be assessable income, in contrast to Social Court Bayreuth S 4 AS 363/17 of 28 November 2017
3. Decisions of the social courts on asylum law
3.1 – Aachen Social Court, Judgment of 02.04.2019 – S 20 AY 8/18 – legally binding
No reductions in benefits within the meaning of Section 5, §§ 5, 6 RBEG in communal accommodation – No discretionary decision pursuant to § 2 para. 2 AsylbLG
Guiding principle (Editor)
1. It is inherently improper to grant benefits in kind for the purpose of stigmatization or discrimination. Therefore, unless there are specific, justifiable reasons related to the accommodation provided on-site in the communal housing facility that necessitate providing benefits in kind to those entitled to analogous benefits, discretion will regularly have to be exercised in favor of granting cash benefits. However, restraint is required when applying Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG).
2. Precisely because of the integration needs of those entitled to analogous benefits into the wider society, as taken into account in Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), they must be allowed to decide on the expenditure of funds largely as if they were receiving basic benefits, according to their individual wishes. A discretionary decision based on the abstract justification that different forms of benefit provision could lead to social tensions is therefore legally untenable from the outset (Bavarian State Social Court, decision of November 19, 2018 – L 8 AY 23/18 B ER).
Source: socialcourtsability.de
4. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
4.1 – Tenants' rights advocates oppose heating cost cap for Hartz IV recipients
Essen will only reimburse Hartz IV recipients for heating costs up to a fixed amount from 01.7.2019.
Read more: www.waz.de
4.2 – Hartz IV recipient must repay child benefit despite it being taken into account
Recipients of Hartz IV benefits must repay any child benefit they received unlawfully. This also applies if the child benefit was previously deducted as income by the job center.
The Federal Fiscal Court (BFH) ruled this in a judgment published on Thursday. (Case number: III R 28/18) The Munich judges thus reaffirmed their previous ruling of September 13, 2018. (Case numbers: III R 19/17 and III R 48/17).
The woman unsuccessfully applied for a waiver of the repayment on "reasons of equity." The fact that the job center had deducted the child benefit from her Hartz IV benefits was not grounds for waiving repayment on equitable grounds.
Read more at: rp-online.de
We wish all our readers a Happy Pentecost!
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
