1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on social assistance under the German Social Code, Book XII (SGB XII)
1.1 – Federal Social Court, judgment of August 9, 2018 (B 14 AS 32/17 R):
Guiding principle Dr. Manfred Hammel
1. Due to the general presumption of freedom of movement, which is justifiable with regard to EU citizens, the stay of an EU foreigner in the federal territory must be considered lawful until the competent regulatory authority has determined that the right of freedom of movement does not exist pursuant to Section 5 Paragraph 4 of the Freedom of Movement Act/EU or the grounds for abuse in Section 2 Paragraph 7 of the Freedom of Movement Act/EU and has thus ordered the immediate obligation to leave the country pursuant to Section 7 Paragraph 1 of the Freedom of Movement Act/EU.
2. This general presumption of freedom of movement alone neither grants access to benefits under the German Social Code, Book II (SGB II) nor does it preclude the exclusion of benefits under the SGB II.
3. An exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2b) of the German Social Code, Book II (SGB II) does not lead to the inapplicability of the German Social Code, Book XII (SGB XII) (Social Assistance) pursuant to Section 21 Sentence 1 of the German Social Code, Book XII (SGB XII).
4. This also applies in a case pursuant to Section 23 Paragraph 3 Sentence 1 No. 4 of the German Social Code, Book XII (SGB XII).
5. The exclusion of benefits regulated there does not result in the exclusion of discretionary benefits pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII). This follows from the fundamental right to a guaranteed minimum standard of living in accordance with Article 1 of the German Basic Law (GG) in conjunction with Article 20 Paragraph 1 GG in the case of an actual residence of a foreigner in Germany against whom no regulatory measures are taken, but whose residence is effectively tolerated, without regard to the possibility of return to the country of origin.
6. With regard to the knowledge required by Section 18 Paragraph 1 of the German Social Code, Book XII (SGB XII) of the competent social welfare agency for the provision of social welfare benefits, reference should be made to the knowledge of the job center, which is not materially competent, that is attributable to the social welfare office.
1.2 – BSG, Judgment of August 28, 2018 (B 8 SO 1/17 R):
Guiding principle by Dr. Manfred Hammel
1. On the appropriate increase of the cash amount pursuant to Section 1 Sentence 1 No. 2 of the Implementing Regulation to Section 90 Paragraph 2 No. 9 of the German Social Code, Book XII (SGB XII) in accordance with Section 2 Paragraph 1 of the Implementing Regulation to Section 90 Paragraph 2 No. 9 of the German Social Code, Book XII (SGB XII) in the particularly justified case of a fully employed, severely disabled person (degree of disability: 100, markers "aG", "RF" and "H") who is permanently dependent on benefits for care (Sections 61 et seq. of the German Social Code, Book XII (SGB XII)).
2. It is the permanent limitations that this person has to accept in their general way of life due to their disability, insofar as they have managed to accumulate assets from their continuous employment, that objectively justify such a decision.
3. This also applies taking into account the fact that the ongoing needs arising from the disability are covered by the necessary social benefits. Of decisive importance here are, in particular, the (lifelong) duration and severity of the impairments with which this severely disabled person is confronted.
1.3 – BSG, Judgment of 12 September 2018 (B 4 AS 33/17 R):
Guiding principle Dr. Manfred Hammel
1. The need of a foreign recipient of unemployment benefit II (§§ 19 ff. SGB II) for the procurement of a new passport is generally included in the standard allowance (§ 20 SGB II).
2. This follows from the concept of this guideline rate as a monthly lump sum to secure subsistence and the determination of the standard allowance based on the average consumption behavior of the relevant reference group and the need for valid identity documents, the costs of which are included in the determination of the standard allowance, which exists equally for domestic and foreign nationals.
3. The assumption of corresponding expenses (here: EUR 217,-) by the Jobcenter pursuant to Section 21 Paragraph 6 SGB II due to a hardship additional need is not an option, because despite a continuously existing passport requirement in the federal territory (Section 48 Paragraph 1 Sentence 1 No. 1 AufenthG), the need regarding the costs of the required identity documents only arises at the time of their procurement.
4. In case of financing difficulties, it is possible to apply for a loan (§ 24 para. 1 SGB II).
1.4 – BSG, Judgment of 12 September 2018 (B 4 AS 45/17 R):
Guiding principle Dr. Manfred Hammel
1. A claim for consideration of an additional hot water requirement beyond the hot water allowance pursuant to Section 21 Paragraph 7 Sentence 2, 1st half-sentence SGB II can be asserted insofar as the expenses for hot water production are not fully covered by this lump sum and are also not unreasonable.
2. The decisive factor in determining whether a different need exists within the meaning of Section 21 Paragraph 7 Sentence 2, 2nd Half-Sentence, 1st Alternative of the German Social Code, Book II (SGB II), is the actual expenditure incurred for decentralized hot water production, provided that these costs are reasonable.
3. The recognition of such a deviating additional hot water requirement does not require separate consumption recording by technical devices (such as a consumption meter), but requires fundamental investigations as well as case-specific findings based on these investigations.
1.5 – BSG, Judgment of November 28, 2018 (B 14 AS 47/17 R):
Guiding principle Dr. Manfred Hammel
1. Expenses for visiting a spouse living abroad of a recipient of unemployment benefit II living in Germany that are not covered by other means and are not merely one-off can, in a special situation, certainly justify an additional hardship allowance pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
2. Even between spouses, maintaining close personal ties can be of paramount importance for personal existence, which is also constitutionally supported by Article 6 Paragraph 1 of the Basic Law.
3. Immigration-related obstacles to the reunification of a foreign spouse with her German spouse living in Germany do not, however, justify the granting of benefits under the German Social Code, Book II (SGB II), for visiting this non-German spouse in her East Asian home country. In this situation, these spouses are required to end the geographical separation between them by pursuing the legally mandated visa application process. There is no special circumstance here that would constitutionally require the Jobcenter to facilitate a meeting between these spouses abroad with (additional) subsistence-level benefits to safeguard their personal livelihoods.
1.6 – BSG, Judgment of November 28, 2018 (B 14 AS 48/17 R):
Guiding principle Dr. Manfred Hammel
1. According to § 21 para. 6 SGB II, the job center must grant additional subsistence-securing benefits to cover travel expenses for visiting adult children in a special situation (here: imposition of pre-trial detention in another state on suspicion of involvement in a homicide).
2. Ongoing expenses incurred for visiting close relatives that are not covered by other means may well justify an additional hardship allowance.
1.7 – BSG, Judgment of December 6, 2018 (B 8 SO 7/17 R):
Guiding principle Dr. Manfred Hammel
1. Even an extracurricular, school-based afternoon program of an open all-day school can, depending on its specific design and with regard to the specific support needs of a disabled student (Down syndrome, degree of disability: 80; award of the disability markers "G" and "H" with simultaneous need for care), constitute assistance for appropriate schooling (§ 54 para. 1 sentence 1 no. 1 SGB XII in conjunction with § 12 no. 1 Integration Assistance Ordinance), if it is suitable and necessary to achieve the respective individual integration purpose in accordance with the socio-educational support needs determined by the school administration.
2. Here, an individual and person-centered standard applies, which regularly contradicts a generalized approach.
3. The decision as to what constitutes the “appropriate school education” for each individual child rests with the school administration.
4. If the open all-day school program serves in particular to support, facilitate or supplement the educational work, the integration assistance required for this is a necessary aid for appropriate schooling.
5. Voluntary educational opportunities (such as tutoring) may also be necessary in individual cases to achieve the educational goal relevant for school attendance.
1.8 – BSG, Judgment of January 30, 2019 (B 14 AS 41/18 R):
Guiding principle Dr. Manfred Hammel
1. According to the legislative provision in Section 22b Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), which is also applicable to conclusive concepts for determining the appropriateness of housing costs pursuant to Section 22 Paragraph 1 Sentence 1 SGB II, the area of responsibility of a job center forms a comparison area which, due to its local conditions, can be subdivided into several comparison areas, for each of which separate appropriateness values can be determined: daily commuting areas for employed persons, proximity to metropolitan areas or proven, significant differences in the rent price level.
2. If a job center uses a single comparison area for the entire district, it is not permissible to later subdivide this comparison area arbitrarily and, for example, treat each individual municipality within this district as its own separate comparison area. There are no objectively justified criteria for this.
3. A concept that leads to several housing market types with different adequacy values within a comparison area based on a "cluster analysis" does not meet the requirements for a coherent concept. There is no legal justification for such a further division of the cities and municipalities within a comparison area. The creation of housing market types cannot alter the prerequisites for the formation and the legal consequences of a comparison area.
Note:
All decisions are published here: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Munich, decision of 13.06.2019 – L 7 AS 382/19 B ER
Rejection of loan benefits due to a lack of efforts to realize their value
Principle (Juris):
If the benefit provider initially grants benefits in the form of a loan pursuant to Section 9 Paragraph 4, Section 24 Paragraph 5 of the German Social Code, Book II (SGB II), pending the question of whether assets are realizable in legal proceedings, a rejection of these loan benefits due to a lack of efforts to realize the assets requires, in addition to a corresponding notification (cf. Federal Social Court, Judgment of May 24, 2017 – B 14 AS 16/16 R – Paragraphs 35 et seq.), that the benefit recipient – after receiving this notification – is given a reasonable amount of time, appropriate to the individual case, to realize the assets. During this period, benefits in the form of a loan pursuant to Section 9 Paragraph 4, Section 24 Paragraph 5 of the German Social Code, Book II (SGB II), may be granted.
Source: www.gesetze-bayern.de
2.2 – Bavarian State Social Court, decision of 12 June 2019 – L 16 AS 374/19 B ER
Order for the suspensive effect of the action – withdrawal order – complete withdrawal of subsistence benefits requires special justification – flawed exercise of discretion
Principle (Juris):
A decision withdrawing basic income support for job seekers is unlawful if, although the conditions of Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I) are met, the authority has exercised its discretion incorrectly.
Principle (Editor):
1. The withdrawal order is unlawful because the Job Center should have considered that the investigations into employability ultimately serve to clarify which authority is responsible. Even if the applicant is deemed incapable of working, they would still be entitled to subsistence benefits of a comparable amount, in which case the social welfare authority would be responsible.
2. If, as in this case involving a known serious lung disease, subsistence-securing benefits are withdrawn, it would have been expected that the respondent would consider whether to withdraw the benefits completely or only partially, especially since the health insurance coverage of the seriously ill applicant also depends on this.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Mannheim, Judgment of 27.02.2019 – S 6 AS 2671/18
Integration grant for the employment of a long-term unemployed severely disabled person
The Social Court of Mannheim had to deal with the scope and duration of an integration subsidy to an employer for the employment of a long-term unemployed severely disabled person.
The Mannheim Social Court overturned the decision and ordered the job center to make a new decision.
According to the Social Court, the job center must take into account the age, the unemployment of several years and the severe disability as obstacles to placement, as well as the fact that, despite her training as an industrial clerk, she has to acquire current and basic knowledge in this field of work due to a lack of professional experience.
The court ruling is legally binding.
juris editorial team.
Source: Press release from the Mannheim Social Court dated July 22, 2019: www.juris.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Bavarian State Social Court, decision of 03.07.2019 – L 18 SO 110/19
Persons in the initial or vocational training area of a workshop for disabled people – new version of Section 45 Sentence 3 No. 3 SGB XII
Guiding principle (Editor):
Even in the case of persons in the entry-level or vocational training area of a workshop for disabled people, a permanent total incapacity for work can be assumed (based on SG Augsburg, judgment of 16.02.2018 – S 8 SO 143/17, SG Gießen, decision of 30.4.2018 – S 18 SO 34/18 ER).
Source: socialcourtsability.de
4.2 – SG Mannheim, judgment of June 4, 2019 – S 2 SO 184/18
Conviction to fully cover objectively unreasonable accommodation costs
The Social Court of Mannheim has ruled that even objectively unreasonable accommodation costs must be fully reimbursed if cost reduction is not possible.
According to the Social Court, the plaintiffs' apartment is indeed too expensive according to the available statistical data. However, it is understandable that the elderly plaintiffs cannot find a suitable apartment without assistance. The defendant did not offer any help, such as covering the real estate agent's fees. Furthermore, it is doubtful whether a more affordable apartment that meets the plaintiff's specific needs, given her mobility impairment, is available.
The appeal period is still running.
juris editorial team.
Source: Press release from the Mannheim Social Court dated July 22, 2019: www.juris.de
5. Decisions of the State Social Courts on Asylum Law
5.1 – Schleswig-Holstein State Social Court, decision of 21 June 2019 – L 9 AY 70/19 B ER – legally binding
Principle (Juris):
The conditions for reduction under Section 1a Paragraph 2 Sentences 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) apply irrespective of an objection raised against a deadline set under Section 59 Paragraph 1 Sentence 1 of the Residence Act (AufenthG), if the objection does not have suspensive effect due to state law provisions.
Source: socialcourtsability.de
5.2 – Lower Saxony-Bremen State Social Court – Case No.: L 8 AY 7/19 ER dated 09.07.2019
Legal norms: Section 1a Paragraph 3 Asylum Seekers' Benefits Act (AsylbLG), Section 86b Paragraph 2 Sentence 2 Social Court Act (SGG) – Keywords: Unlawful reduction of benefits, breach of duty, analogous benefits, continuing administrative act
Principle by Attorney Sven Adam
1. The social welfare authority must, in the area of benefits under the Asylum Seekers' Benefits Act (AsylbLG), have specifically updated its legal obligations to cooperate under residence law, e.g., regarding the procurement of identity documents (§ 48 para. 3 Residence Act), also in the area of securing subsistence, in order to be able to draw negative consequences from the lack of cooperation.
2. The Lebanese Embassy regularly makes the issuance of a national passport contingent upon proof of a valid residence permit or confirmation from the immigration office that the passport is required for the issuance or renewal of such a permit. This leads to increased requirements for specifying the necessary cooperation obligations and, where applicable, an obligation on the part of the authorities to provide assistance.
3. If the social welfare authority cannot credibly demonstrate the specificity and, if necessary, the provision of assistance, this will be to its detriment and, in expedited social court proceedings, the benefits are to be granted provisionally without a reduction in benefits pursuant to Section 1a AsylbLG.
Source: Attorney Sven Adam, Göttingen: www.anwaltskanzlei-adam.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – BSG on schoolbook costs, a contribution by Herbert Masslau
More information: www.herbertmasslau.de
6.2 – Successful event with 15 companions at the Porz Job Center – The KEAs e. V. – Cologne Unemployed in Action
More information: www.die-keas.org
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
