1. Decisions of the Federal Social Court on basic income support (SGB II)
1.1 – BSG, judgment of November 28, 2018 – B 14 AS 47/17 R
Entitlement to unemployment benefit II – additional needs for visits to a spouse living abroad – no entitlement to reimbursement of costs for an annual visit to his wife living in China.
Guiding principle (Editor):
Costs for visiting the plaintiff's wife living in China are not to be reimbursed by the job center, because obstacles under immigration law to family reunification with German nationals in Germany do not justify benefits under the German Social Code, Book II (SGB II) for visiting foreign spouses abroad.
Source: socialcourtsability.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Hamburg, decision of 18 June 2019 – L 4 AS 155/19 B ER
BAföG – Deduction of training costs (school fees)
Guiding principle (Editor)
1. According to the new legal situation, the school fees in the actual amount can be deducted from BAföG in accordance with § 11b para. 1 sentence 1 no. 5, para. 2 sentence 5 SGB II.
2. School fees can be deducted from BAföG (Federal Training Assistance Act) as a necessary expense if there is no reasonable free alternative to the chosen training.
Source: socialcourtsability.de
2.2 – Hamburg State Social Court, decision of June 20, 2019 – L 4 AS 34/19 B ER – legally
binding. Headnote (Editor):
1. The exception to the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), formulated in Section 7 Paragraph 1 Sentence 4 SGB II, requires only a one-time registration with the competent registration authority (contrary to the decision of the Higher Social Court of Schleswig-Holstein of May 4, 2018 – L 6 AS 59/18 B ER; leaving open the question the decision of the Higher Social Court of Saxony-Anhalt of February 7, 2019 – L 2 AS 860/18 B ER; as in the decision of the Higher Social Court of Berlin-Brandenburg of June 6, 2017 – L 15 SO 112/17 B ER; and the decision of the Higher Social Court of North Rhine-Westphalia of April 23, 2018 – L 7 AS 2162/17 B ER).
2. Neither the wording of Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II) nor the explanatory memorandum to the law (see again BT-Drucks. 18/10211, pp. 13 et seq.) can be interpreted by the Senate as requiring continuous registration of the beneficiary for the exception to the exclusion from benefits.
Source: socialcourtsability.de
2.3 – Hessian State Social Court, Judgment of 10 May 2019 – L 9 AS 368/16
The concept developed by the district of Gießen in 2012 is not conclusive
Guiding principle (Editor):
1. The Job Center's concept is not conclusive within the meaning of the Federal Social Court's jurisprudence because it considers the entire district of Gießen as a single comparison area and divides cities and municipalities within this comparison area into several housing market types with different limits of appropriateness. This is inadmissible because there is no legal justification for such a division; in particular, the creation of housing market types cannot alter the prerequisites for the creation and the legal consequences of a comparison area; moreover, in this case, there is no objective justification for the individual housing market types (see Federal Social Court, Judgment of January 30, 2019, B 14 AS 41/18 R, SGb 2019, 227, 228).
2. Whether the unreasonableness of a move can arise from the fact that the benefit recipient is close to retirement is irrelevant; this only comes into consideration if there is insufficient time available for relocation and adjustment (Federal Social Court, judgment of December 17, 2009 – B 4 AS 27/09 R –). Such a situation does not exist here.
3. While the right of older people to remain in their long-established, familiar social environment must be taken into account when granting subsistence benefits (see, for basic income support for the elderly, Federal Social Court, judgment of March 23, 2010, B 8 SO 24/08 R), the plaintiff had only lived in the apartment in question for three years, so that a long-established, familiar social environment could not be said to exist.
Source: socialcourtsability.de
2.4 – North Rhine-Westphalia State Social Court, Judgment of 23 May 2019 – L 7 AS 1440/18
Regarding the assumption of a claim for additional operating and heating costs for a terminated tenancy – unreasonableness of the new accommodation costs
Guiding principle (Editor):
1. The categories of cases established by the Federal Social Court (BSG) that allow for the reimbursement of costs for a vacant apartment (fulfillment of a cost-reduction obligation or assurance regarding the move) are not to be considered exhaustive. This is already made clear by the word "in any case" in the BSG's judgment of March 30, 2017 (B 14 AS 13/16 R), which permits further case scenarios.
2. In any case, a connection relevant to the right to subsistence security between the additional utility costs for the previously occupied apartment and the current housing-related needs can exist even if the move was not preceded by a request to reduce costs or a relocation commitment. The mere fact that the new housing costs are unreasonable does not preclude such a connection, as this only affects the new housing costs or the moving-related expenses such as the security deposit, renovation costs, and moving expenses.
Source: socialcourtsability.de
2.5 – North Rhine-Westphalia State Social Court, decision of 12 June 2019 – L 7 AS 507/19 B ER and L 7 AS 508/19 B – legally
Guiding principle (Editor):
1. Kosovar nationals are entitled to ALG II (unemployment benefit II), because the grounds for exclusion under Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) do not apply, since in the case of a certificate of deemed residence pursuant to Section 81 Paragraph 4 of the German Residence Act (AufenthG), residence is generally considered permitted and not only for the purpose of job seeking (Judgment of the Senate of 25 February 2016 – L 7 AS 1391/14).
2. The exception in Section 36 Paragraph 2 of the German Social Code, Book II (SGB II) is not applicable, as the applicants are not subject to a residence requirement within the meaning of Section 12a of the German Residence Act (AufenthG) and do not possess a residence permit within the meaning of this provision. Rather, they possess a residence permit pursuant to Section 25 Paragraph 5 of the German Residence Act (AufenthG), which is why their residence obligation is governed by Section 61 Paragraph 1d of the German Residence Act (AufenthG). This provision is not covered by the special rule regarding local jurisdiction in Section 36 Paragraph 2 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Berlin, Judgment of 16 May 2019 – S 150 AS 17766/15
Pro bono; set-off; declaration of set-off; set-off situation; attorney's fees; reimbursement; lawyer
Principle (Juris):
A set-off against a lawyer's claim for remuneration with claims against the recipient of services is not possible if the lawyer has provided his services to the recipient free of charge (pro bono).
Source: socialcourtsability.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Hamburg State Social Court, Judgment of 05.06.2019 – L 4 SO 11/17 – Appeal allowed, because
The question of entitlement to emergency assistance on the first day of hospital treatment is not clearly settled in the jurisprudence of the Federal Social Court. While the decision of March 1, 2018 (B 8 SO 63/17) states that, on the day of a person's admission to a hospital, the social welfare law element of an urgent case within the meaning of Section 25 Sentence 1 of the German Social Code, Book XII (SGB XII) is already absent if there is time to inform the social welfare agency and await its decision on granting the necessary assistance, the Federal Social Court simultaneously emphasizes the social welfare agency's knowledge as a crucial turning point for the mutually exclusive claims of the emergency aid provider and the person entitled to benefits. Thus, it remains unclear how to proceed if the agency is aware of the situation but its decision cannot be awaited for medical reasons.
Guiding principle (Editor)
1. The plaintiff has no claim here for reimbursement of her expenses as emergency aid costs, not even for the costs incurred on the first day of the patient's treatment.
2. It is in accordance with the established case law of the Senate, known to the parties, that the day the social welfare provider becomes aware of the situation is to be attributed to the patient's entitlement to social assistance and is no longer reimbursable under the emergency assistance claim if – as in this case – all rescue and treatment measures took place within the defendant's on-call service and the report of the emergency occurred before or immediately upon the patient's admission. From this day onward, only the beneficiary, and no longer the emergency responder, has a claim. (Judgment of August 30, 2018, L 4 SO 41/17).
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Asylum Law
5.1 – Lower Saxony-Bremen State Social Court, Judgment of 23 May 2019 – L 8 AY 49/18
Keywords: cost-of-living adjustment, dignified minimum standard of living
Provisional entitlement to adjusted higher standard allowances under the Asylum Seekers' Benefits Act (AsylbLG)
Guiding principles RA Christoph von Planta c/o vpmk Rechtsanwälte, Monbijouplatz 3a 10178 Berlin
1. The current benefit rates according to Section 3 Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) are probably unlawful for the years from 2017 onwards:
"In accordance with the decision of the court of first instance, the Senate currently tends to believe that the benefit rates pursuant to Section 3 Paragraph 1 Sentence 8 of the Asylum Seekers' Benefits Act (AsylbLG) (necessary personal needs) and pursuant to Section 3 Paragraph 2 Sentence 2 of the AsylbLG (necessary needs) for the period from 2017 onwards should be updated within the framework of a judicial review (at least) pursuant to Section 3 Paragraph 4 Sentences 1 and 2 of the AsylbLG (see also Social Court Stade, judgment of April 11, 2019 – S 19 A 5119 – juris para. 29 et seq.; Social Court Bremen, decision of April 15, 2019 – S 40 AY 23119 ER – juris para. 17 et seq.). This is supported by an interpretation compatible with the wording of Section 3 Paragraphs 4 and 5 of the AsylbLG, which takes into account the legislative history and systematics as well as the purpose of updating the benefit rates." Of particular importance is also the constitutional significance of the fundamental right to a guaranteed minimum standard of living that ensures human dignity (Art. 1 para. 1 GG in conjunction with Art. 20 para. 1 GG)
2. “The fact that the Federal Ministry of Labor and Social Affairs (BMAS) did not publish the benefit rates applicable in 2017, 2018 and 2019 does not preclude the updating of the monetary amounts for all necessary personal needs pursuant to Section 3 Paragraph 1 Sentence 8 of the Asylum Seekers' Benefits Act (AsylbLG) and the necessary needs pursuant to Section 3 Paragraph 2 Sentence 2 of the AsylbLG in accordance with Section 3 Paragraph 4 Sentences 1 and 2 of the AsylbLG in court proceedings (contra Hohm in ZSFH SGB 2019, 68 et seq.).”
3. “However, even if the standard rates for the years 2017 to 2019 are continued, a fundamental review is still required, at least in main proceedings, to determine whether the standard rates pursuant to Section 3 Paragraph 1 Sentence 8 of the Asylum Seekers' Benefits Act (AsylbLG) (in the amount set by the Act on the Introduction of Accelerated Asylum Procedures of March 11, 2016, Federal Law Gazette 1390) even meet the procedural requirements of the Federal Constitutional Court (see, for example, the judgment of July 18, 2012 – 1 BvL 10/10 and 2111, para. 62 et seq.) for determining a dignified minimum standard of living (see, in this regard, the Senate decisions of November 1, 2018 – L 8 A 37118 B ER – and May 9, 2018 – L 8 AY 7118 NZB – with further references; Higher Social Court of North Rhine-Westphalia, decision of July 11, 2017 – L 20 A 4117 B -juris para. 28; critically, also Frerichs in juris PK-AsylbLG, 2nd ed. 2014, § 3 para. 60.1 et seq.; Oppermann, jurisPR-SozR 1612016 note 1; Siefert in Siefert, AsylbLG, 1st ed. 2018, § 3 para. 40 et seq.; cf. for the state of opinion also Cantzier, AsylbLG, 1st ed. 2019, § 3 para. 44)
Full text now published: sozialgerichtsbarkeit.de
Note:
Press release LSG NSB dated July 3, 2019:
Basic benefits for asylum seekers: Consequences of failure to adjust benefits
The LSG Celle-Bremen has highlighted the consequences of a failure to adjust basic benefits for asylum seekers, as these have not been increased since 2017 contrary to legal requirements.
The State Social Court, due to the fundamental importance of the case, has provided an outlook on its anticipated rulings. Like the Social Court, the State Social Court is inclined to believe that the basic benefits for the period from 2017 onward should be continued in accordance with legal requirements, as the legislature failed to recalculate them. This approach is supported by an interpretation consistent with the wording of the Asylum Seekers' Benefits Act (AsylbLG), which takes into account the legislative history and systematic structure, as well as the purpose of updating the benefit rates. The benefit rates under the AsylbLG remained unchanged from 1993 to 2012 and were not adjusted to reflect living conditions in Germany. Reviewing and further developing the benefits based on current circumstances is also required by the Federal Constitutional Court. This is a matter of human dignity.
Source: www.juris.de
5.2 – Bavarian State Social Court, decision of 19 May 2019 – L 18 AY 14/19 B ER
Principle (Juris)
1. An administrative act that establishes a restriction of entitlement pursuant to Section 1a AsylbLG must describe the factual circumstances underlying the restriction of entitlement with sufficient specificity.
2. Before issuing such an administrative act, the affected benefit recipient must be heard.
Source: socialcourtsability.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Federal Social Court: No insolvency benefit after transfer of business
SGB III § 165; BGB § 613a
1. In the event of a transfer of undertaking before the insolvency event, the insolvency benefit period ends with the takeover of the undertaking by the new acquirer, despite the continued existence of the employee's employment relationship.
2. If, in administrative and court proceedings concerning a claim for insolvency benefits, it cannot (or can no longer) be determined whether a transfer of undertaking has taken place, the defendant, the Federal Employment Agency, bears the objective burden of proof. (Author's headnotes)
Federal Social Court (BSG), Judgment of 26 February 2019 – B 11 AL 3/18 R, BeckRS 2019, 8512
Comment by attorney Prof. Dr. Hermann Plagemann, Plagemann Rechtsanwälte Partnerschaft mbB, Frankfurt am Main
From beck-fachdienst Sozialversicherungsrecht 12/2019 dated 21.06.2019
Continue reading: rsw.beck.de
6.2 – Hartz IV for the month of the heating oil order, a contribution by attorney Helge Hildebrandt
Even people who do not receive ongoing benefits to secure their livelihood under the German Social Code Book II (SGB II, also known as Hartz IV) may be entitled to benefits under the SGB II for their heating costs for the month in which they order heating material.
More information: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
