1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – State Social Court of Saxony-Anhalt, decision of 06.02.2019 – L 2 AS 507/18 B ER and L 2 AS 508/18 B
Preliminary legal protection – EU citizens – Exclusion of benefits for foreigners residing in Germany for the purpose of seeking employment – no self-employment in the case of mere family assistance – EU law definition of worker – permanence of the activity – no bridging benefits pursuant to Section 23 Paragraph 3 Sentences 3 to 6 of the German Social Code, Book XII (SGB XII) if the period in question has already expired and a new application for benefits under the German Social Code, Book II (SGB II) has been submitted
Principle (Juris)
1. The mere submission of evidence of income generated from scrap metal sales is not sufficient to prove self-employment as a scrap metal dealer.
2. For the purposes of the Freedom of Movement Act/EU and EU law, an employee can only be considered to be someone who performs actual and genuine work that is not so minor as to be entirely subordinate and insignificant. Such entirely subordinate and insignificant work is assumed to exist if, due to the short duration of the work, the person performing it cannot become familiar with it and/or the work performed has no economic value for the employer.
Source: socialcourtsability.de
1.2 – State Social Court of Saxony-Anhalt, Judgment of 14 August 2018 – L 10 SF 3/17 EK
Principle (Juris):
In the case of a party joined simply pursuant to Section 75 Paragraph 1 of the Social Courts Act (SGG), no non-material disadvantage is generally presumed under Section 198 Paragraph 2 Sentence 1 of the Courts Constitution Act (GVG) in the event of excessively long proceedings. The mere fact of simple joinder is insufficient to establish a presumption of disadvantage. Therefore, a party joined simply can generally only have a claim for damages due to an unreasonable length of court proceedings under Section 198 Paragraph 1 Sentence 1 of the Courts Constitution Act (GVG) if they have demonstrably suffered actual damage in the individual case.
Source: socialcourtsability.de
1.3 – Schleswig-Holstein Higher Social Court, Decision of 20 December 2018 – L 6 AS 202/18 B ER
The legal remedies information must also refer to electronic form in the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Altenburg Social Court, Judgment of 18 March 2019 – S 42 AS 1942/17 – legally binding
Accommodation costs for homeownership – contributions to life insurance as a substitute for loan repayment are not considered accommodation costs
Guiding principle (Editor):
Regarding the assumption of expenses for a capital life insurance policy integrated into the financing of a self-occupied single-family house as benefits for accommodation and heating costs, this is rejected because the asset accumulation resulting from the monthly insurance premiums cannot be provided from funds of basic income support for job seekers.
Source: socialcourtsability.de
2.2 – Social Court Landshut, Judgment of 27 May 2019 – S 11 AS 504/17
Trial stay in a secure psychiatric facility – benefits to secure subsistence are secondary
Guiding principle (Editor)
1. The provisions of the Bavarian Law on the Execution of Preventive Detention Orders (BayMRVG) of 17 July 2015 constitute an independent, comprehensive, priority system of services for all needs in preventive detention (following the ruling of the Social Court of Munich, judgment of 19 April 2018 – S 46 AS 2799/16 -).
2. The costs of trial accommodation are costs of preventive detention (Art. 18 para. 1 sentence 3 BayMRVG). Insofar as the Bavarian State Social Court (decision of January 21, 2019 – L 7 AS 24/19 B ER –) assumes that Art. 18 para. 1 sentence 3 BayMRVG is not decisive, it refers to the legal situation of January 1, 2019, which is not relevant here.
3. The exception under Section 7 Paragraph 4 Sentence 3 of the German Social Code, Book II (SGB II), based on actual employment on the general labor market of at least 15 hours per week, is not possible. Following the amendment to the law on August 1, 2016, with the insertion of "according to Sentence 1" after "in a residential facility," it is clarified that persons residing in a facility for the execution of judicially ordered deprivation of liberty are not entitled to benefits, even if they are engaged in employment to the aforementioned extent as inmates on work release (Munich Social Court, Judgment of April 19, 2018 – S 46 AS 2799/16).
Source: socialcourtsability.de
3. Decisions of the social courts on employment promotion law (SGB III)
3.1 – SG Landshut, Judgment of 15 May 2019 – S 16 AL 238/18
A termination agreement can result in a waiting period
The Social Court of Landshut has clarified that not only the termination of an employment relationship by the employee, but also the conclusion of a termination agreement can result in a waiting period.
According to the Social Court, the plaintiff, by agreeing to the termination agreement, dissolved his employment without any concrete prospects of immediate subsequent employment. He thereby grossly negligently brought about his unemployment. Furthermore, he failed to credibly demonstrate that he would have faced dismissal from his employer at the same time had he not signed the termination agreement. The temporary employment agency, in any case, denied that it had dismissed the plaintiff on its own initiative.
Source: www.juris.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Saarbrücken Judgment of 4 April 2019 – L 11 SO 14/17
Principle (Juris):
1. In principle, the need for motor vehicle assistance in the form of the assumption of procurement costs is eliminated if a roadworthy vehicle is already available (cf. Federal Social Court, judgment of March 8, 2017 – B 8 SO 2/16 R). It is not an exclusion criterion if the plaintiff is unable to drive a vehicle himself, but this is primarily done by his assistant as part of 24-hour care (cf. Section 8 Paragraph 3 of the Integration Assistance Ordinance). It is irrelevant that the available leased vehicle is not owned by the plaintiff.
2. In the overall assessment to be carried out, the existing family community of support and the comprehensive principle of family solidarity with the duty of assistance and consideration – also towards adult children, as is evident from § 1618a BGB – must be taken into account (cf. BSG, judgment of 28.08.2018 – B 8 SO 9/17 R).
3. The aim of tax-financed social welfare benefits is, among other things, protection against social exclusion. In this context, the focus must be on lifestyles shared by the population living in "modest circumstances" (see Bavarian State Social Court, judgment of February 26, 2010 – L 8 SO 55/09), thus establishing a limit to the plaintiff's right to choose and express his wishes under Section 9 Paragraph 2 of the German Social Code, Book XII (see Federal Social Court, judgment of December 2, 2012 – B 8 SO 19/10 R).
Source: www.rechtsprachung.saarland.de
4.2 – LSG Saarbrücken Judgment of 4 April 2019 – L 11 SO 16/17
Principle (Juris)
1. Reimbursement of costs for social assistance benefits provided on the basis of Sections 108, 147 BSHG aFiVm Section 115 SGB XII (cf. Federal Social Court, judgment of 14 April 2011 – B 8 SO 23/09 R; Federal Social Court, judgment of 22 March 2012 – B 8 SO 2/11 R) can, pursuant to Section 111 Sentence 1 SGB X, only be claimed retroactively for one year from receipt of the reimbursement request.
2. If it is clearly communicated to a party liable for reimbursement that the initially asserted claim for reimbursement will not be pursued further and is settled, the one-year time limit of Section 111 Sentence 1 of the German Social Code, Book X (SGB X) applies (again) to any subsequent renewed claim for reimbursement. 3. Section 112 of the German Social Code, Book X (SGB X) is also applicable when asserting a claim for (re)reimbursement, as this provision serves to reverse materially defective reimbursements and to prevent unjustly transferred assets from remaining with the unjustly enriched party. This claim for reimbursement is not subject to an exclusion of claims under Section 111 Sentence 1 of the German Social Code, Book X (SGB X) (see, for example, Federal Social Court (BSG), Judgment of December 15, 2015 – B 1 KR 14/15 R).
Source: www.rechtsprachung.saarland.de
4.3 – Hildesheim Social Court – Case No.: S 34 SO 40/16 of 24 May 2019
Legal basis: Section 22 Paragraph 1 Sentence 1 SGB II – Keywords: Göttingen district, analysis and concepts, limits of reasonableness, housing costs
Guiding principle (Editor):
The defendant does not have a coherent concept for determining reasonable housing costs in the Göttingen area. The A&K expert opinion obtained by the defendant does not meet the requirements of the Federal Social Court's (BSG) case law (see Lower Saxony-Bremen State Social Court, judgment of April 2, 2019 — L 6 AS 467/17).
Source: www.anwaltskanzlei-adam.de
4.4 – SG Hildesheim, judgment of June 7, 2019 – S 34 SUN 13/19
Herbert Masslau's guiding principle is
that basic income support for the elderly and those with reduced earning capacity under the German Social Code, Book XII (SGB XII), is unlawful if it is subject to a provisional condition for a benefit period of only 6 months and there are no atypical indications of a deviation from the standard benefit period.
Summary:
Because a provisional grant of benefits (§ 44a SGB XII; § 41a SGB II) does not establish any legitimate expectations, formally high requirements must be placed on such a grant.
"In the present case, the actual rent is being considered provisionally, and the final calculation is contingent upon a court ruling. In the Chamber's opinion, this does not constitute a sound legal basis for a provisional grant." "Therefore, in the Chamber's opinion, reducing the grant period to six months was unlawful. The grant should have been issued for 12 months from the outset, as there are no atypical indications of a deviation from the standard grant period."
Source: herbertmasslau.de
4.5 – Hamburg Social Court, decision of 23 April 2019 – S 10 SO 222/19 ER
Guiding principle (Editor):
Costs for a disability-friendly conversion of the rented apartment according to § 64e SGB XII, rejected here because costs of 21,000 euros are not in reasonable proportion to the goal of enabling or significantly facilitating the applicant's home care or securing her participation in community life.
Source: socialcourtsability.de
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – State Social Court of Saxony-Anhalt, Decision of 25 February 2019 – L 8 AY 10/18 B ER – legally binding
Guiding principle (Editor):
No fundamental objections to the application of Section 1a AsylbLG in the version applicable since August 3, 2016.
Source: socialcourtsability.de
5.2 – Baden-Württemberg State Social Court, decision of 14 May 2019 – L 7 AY 1161/19 ER-B
Headnote (Editor):
Unconstitutionality of Section 1a Paragraph 4 Sentence 2 AsylbLG – the Senate is not convinced of this (cf. Baden-Württemberg State Social Court judgment of 8 November 2018, L 7 AY 4468/16).
Principle (Juris)
1. The provision of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) is based on the fact that another EU Member State has already granted international protection or another right of residence, that this status continues, and that the foreigner nevertheless enters the Federal Republic of Germany.
2. The decision regarding a restriction of entitlement pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act is sufficiently specific if it indicates the issuing authority, the addressee, the period of the restriction of entitlement, and the amount of the reduced benefits.
Source: socialcourtsability.de
5.3 – Hamburg Social Court, decision of 23 April 2019 – S 10 AY 26/19 ER
Asylum seeker benefits – holders of a tolerated stay
Section 1a paragraph 4 sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) does not apply to foreigners who have been granted a temporary suspension of deportation.
Guiding principle (Editor):
1. Both the wording and the systematic structure of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) argue against applying paragraph 4, sentence 2 of the provision to tolerated foreigners. This is because the legislator has expressly differentiated in Section 1a AsylbLG between the various beneficiaries of benefits under Section 1, paragraph 1 AsylbLG with regard to the personal scope of application (see Hamburg Higher Social Court, decision of October 25, 2017 – L 4 AY 5/17 B ER; Lower Saxony-Bremen Higher Social Court, decision of December 12, 2016 – L 8 AY 51/16 B ER; both concerning Section 1a, paragraph 2 AsylbLG).
2. Thus, the restrictions on entitlement under Section 1a Paragraphs 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) apply to those entitled to benefits under both Section 1 Paragraph 1 No. 4 and No. 5 of the AsylbLG, whereas Section 1a Paragraph 2 of the AsylbLG refers only to those entitled under No. 5 and Section 1a Paragraph 4 (Sentence 2 in conjunction with) Sentence 1 of the AsylbLG refers only to those entitled under No. 1 or No. 5. This differentiation suggests that, for Section 1a Paragraph 4 Sentence 2 of the AsylbLG to be applicable to foreigners subject to enforceable deportation orders, entitlement to benefits must arise solely from Section 1 Paragraph 1 No. 5 of the AsylbLG, and the provision is not applicable if the person concerned (also) holds a temporary suspension of deportation (see Lower Saxony-Bremen Higher Social Court, loc. cit.).
Source: socialcourtsability.de
5.4 – Bremen Social Court, decision of April 15, 2019 (Case No.: S 40 AY 23/19 ER):
Guiding principle by Dr. M. Hammel:
On the affirmation of a claim to adjustment of the standard benefit in accordance with Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG).
This increase in benefit entitlement results directly from the law. The standard benefit amount is also linked here to the increase in standard benefits under the German Social Code, Book XII (SGB XII).
Insofar as the changes in benefits under the German Social Code, Book XII (SGB XII) are determined, the basic benefits granted in accordance with Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) must be adjusted accordingly.
A prior decision by the legislator or regulatory authority is not necessary here, because Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) prescribes the calculation. Therefore, no further significant decision needs to be made at this point.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Schleswig-Holstein Higher Social Court, 3rd Senate, Judgment of 15 February 2019 – L 3 AL 5/17
Author: Prof. Dr. Hermann Plagemann, Attorney at Law, Specialist in Social Law and Specialist in Labor Law
Waiting period for leaving work due to relocation
Principle:
The joint relocation of a residence does not fall under the immigration case law of the Federal Social Court (BSG).
Guiding principle regarding the comment:
Anyone who terminates their employment because they are relocating their shared residence with their spouse to a different location triggers a waiting period according to Section 159 of the German Social Code, Book III (SGB III). The landlord's termination of the previous lease is not sufficient to establish a valid reason for leaving employment.
Continue reading on Juris: www.juris.de
Accommodation costs (rent levels) in North Frisia according to SGB XII / II (Hartz IV) from 01.7.2019, a contribution by lawyer Dirk Audörsch
Although it is expected that the district council of the district of North Frisia will slightly increase the so-called rent ceilings in its meeting on June 21, 2019, according to the following draft resolution, the law firm Audörsch still considers the rent ceilings to be incompatible with the requirements of the Federal Social Court.
On the one hand, there are significant concerns regarding the established comparison areas (North/South/Sylt) in North Frisia. These concerns stem from the decision of the Federal Social Court of January 30, 2019 (B 14 AS 41/18 R), which objected to the fact that, in the district of Bad Segeberg, the city of Norderstedt, with its proximity to Hamburg, was grouped with the comparison area of the rural surrounding area. The reasoning appears applicable to the city of Husum, which was also grouped with the rural surrounding area.
On the other hand, there are also concerns regarding the rent limits, for example for the islands of Amrum and Föhr.
Continue reading: westkuestenanwalt.com
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
