1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Mecklenburg-Vorpommern State Social Court, Judgment of 07.05.2019 – L 10 AS 632/16
Principle (Juris):
1. Former receipt of benefits does not obligate persons who are not entitled to benefits under the German Social Code, Book II (SGB II) due to assets to manage these assets with a degree of restraint beyond the general norm. Those affected are not obligated to maintain a particularly modest lifestyle, and certainly not to limit their monthly expenses from their assets to the amount of SGB II benefits.
2. A claim for compensation under Section 34 of the German Social Code, Book II (SGB II) due to squandering of assets is therefore only considered in exceptional cases. Socially unacceptable behavior exists only if assets are deliberately squandered with the aim of regaining eligibility for benefits as quickly as possible.
Source: www.landesrecht-mv.de
Legal tip:
See SG Düsseldorf, judgment of 31.08.2015 – file no.: S 35 AS 257/15 – Luxurious lifestyle – monthly expenses of EUR 3,550 – of a person not receiving basic income support does not constitute socially unacceptable behavior and does not give rise to an examination of a claim for damages under § 34 SGB II.
1.2 – Mecklenburg-Vorpommern State Social Court, decision of 24 June 2019 – L 14 AS 452/17 NZB
Principle (Juris):
The legal principles concerning the burden of proof are assigned to substantive law (Federal Court of Justice, 17 February 1983 – III ZR 184/81), which is why their incorrect assessment constitutes an error in judicando, which is regularly irrelevant for the appeal against the refusal of leave to appeal, but not a procedural defect (error in procedendo).
Source: www.landesrecht-mv.de
1.3 – Baden-Württemberg State Social Court, Decision of 24.06.2019 – L 7 AS 1916/19 ER-B
For the application of preliminary judicial protection pursuant to Section 86b Paragraph 2 of the Social Courts Act (SGG), the necessary need for legal protection is lacking if the person seeking legal protection has not previously contacted the competent authority in a timely manner with their request.
Guiding principle (Editor):
The need for legal protection is generally lacking if the person seeking legal protection has not previously contacted the authority (LSG Bavaria, decision of June 14, 2016 – L 15 SB 97/16 B ER – juris para. 13; LSG North Rhine-Westphalia, decision of January 24, 2012 – L 12 AS 1773/11 B ER – juris para. 18; LSG Berlin-Brandenburg, decision of April 9, 2018 – L 23 AY 6/18 B ER – juris para. 8; Keller in Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 12th ed. 2017, § 86b para. 26b; Krodel/Feldbaum, Das sozialgerichtliche Eilverfahren, 4th ed. 2016, para. 30; Meßling in Henning, SGG, § 86b para. 143 [December 2014]). It is incumbent upon the affected party to submit an application in such a timely manner that, in the event of inaction by the authority or a negative decision, they can then seek judicial protection in a permissible manner (LSG Berlin-Brandenburg, decision of April 9, 2018 – L 23 AY 6/18 B ER – juris para. 8; cf. BVerfG, decision of October 30, 2009 – 1 BvR 2442/09 – juris para. 4 – BVerfGK 16, 347 [348]).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Düsseldorf, decision of 5 August 2019 – S 35 AS 3046/19 ER
Important: Schoolbook decision for North Rhine-Westphalia: The job center must cover the student's share of the cost of schoolbooks
The Düsseldorf Social Court (decision of August 5, 2019 – S 35 AS 3046/19 ER) has now ruled in a further preliminary injunction that the co-payments for schoolbook costs must be covered in full as a grant. The reasoning is clear and concise: “The applicants are entitled to reimbursement of the costs as a hardship allowance pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II). The Federal Social Court already ruled this in two cases in May 2019 (Case Nos. B 14 AS 6/18 R and B 14 AS 13/18 R). Since a claim obviously exists in this respect, the requirements for the grounds for the application pursuant to Section 86b Paragraph 2 Sentence 2 of the German Social Courts Act (SGG) are superseded. The court cannot, for reasons of due process – even in preliminary injunction proceedings – reject an obviously existing claim on the grounds that there is no urgency.”.
(With the last sentence, the court states that the €96.94 in dispute for four children does not, in principle, constitute grounds for an injunction, i.e., the obligation to make an immediate emergency decision. However, since the clear legal entitlement to the benefit exists in this case, it does.).
In practice, this means that in North Rhine-Westphalia, all children receiving benefits under the German Social Code, Book II (SGB II), can claim reimbursement from the job center if they have to pay extra for schoolbooks. This applies at least to co-payments/personal contributions from May 2019 onwards. This means that the claim can also be made retroactively.
Here is the decision of the Social Court of Düsseldorf.
The Cologne Social Court, in its judgment of May 29, 2019 – S 40 AS 352/19, also ordered the responsible job center to cover the student's contribution, in this case amounting to €24 (pursuant to Section 96 Paragraph 3 of the North Rhine-Westphalia School Act in conjunction with the Ordinance on Section 96 Paragraph 5 of the School Act). Student contributions in North Rhine-Westphalia can reach up to €234 . The Cologne Social Court sees the legal basis for this claim as applying the additional needs allowance under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) by analogy. This is systematically the same argument used in the Tacheles campaign on school supplies.
Here is the verdict.
Now it is up to the advice centers and welfare associations in North Rhine-Westphalia to publicize this entitlement and to inform and support those entitled to benefits.
The state legislature is also called upon to create a legal amendment here and to ensure a supply of learning materials free of charge.
Source: Harald Thomé, Tacheles eV via Facebook
2.2 – Munich Social Court, judgment of 30 July 2019 – S 52 AS 1319/17
Guiding principle (Editor):
1. The requirement of reciprocity means that it is insufficient for the benefit recipient to have to make numerous efforts toward integration while the agency merely provides job placement suggestions and (at its discretion) covers application costs. Rather, it must be evident that the agency provides integration services tailored to the individual's needs. If such individualized measures are to be waived, the exercise of discretion in this matter must be clearly identifiable (cf. Federal Social Court, judgment of June 23, 2016, case no. B 14 AS 42/15).
The administrative act did not meet these requirements.
Note:
It should also be noted that the requirements for integration agreements have fundamentally changed since August 1, 2016. Before concluding an integration agreement or issuing an integration administrative act, a potential analysis must now be carried out (see Section 15, Paragraph 2, Sentence 1 of the German Social Code, Book II). This analysis forms the basis for an integration agreement or an integration administrative act. Furthermore, a review and update of the agreed mutual obligations is now mandatory on a regular basis, at the latest after six months.
Source: socialcourtsability.de
2.3 – SG Stuttgart, judgment of May 15, 2019 – S 22 AS 3913/18
Action for failure to act unsuccessful in cases involving a large number of proceedings by one plaintiff
The Stuttgart Social Court has ruled that in cases where plaintiffs keep the social administration and the social courts busy with a large number of proceedings, there is sufficient justification for the social administration to exceed the statutory deadlines for issuing an administrative act.
According to the Social Court, the action for failure to act was unfounded from the outset. The Job Center had a sufficient objective reason for not deciding on the plaintiff's objection within three months. The plaintiff himself was responsible for the defendant's failure to comply with the deadline stipulated in Section 88 Paragraph 2 of the Social Court Act (SGG). He was keeping the Job Center busy with numerous applications, objections, lawsuits, preliminary injunction proceedings, appeals, and complaints. At the time the objection decision was issued, the Job Center was handling approximately one hundred other objections and about 400 pending social court proceedings on behalf of the plaintiff, his three children, and their mother. Before the Stuttgart Social Court alone, by May 2019, the plaintiff had initiated over 1,150 proceedings, the mother of his children over one thousand, and each of their three children had initiated more than 370, 360, or 290 proceedings.
In the case of plaintiffs who keep the social administration and the social courts busy with a large number of proceedings, the job center is not obliged to direct its administrative activities primarily towards those applicants who are conducting a large number of proceedings, to the detriment of the other benefit recipients.
The decision is not yet legally binding.
juris editorial team.
Source: Press release from the Stuttgart Social Court, excerpt of current case law (as of August 2019), dated August 2, 2019
Source: www.juris.de
2.4 – SG Karlsruhe, judgment of April 16, 2019 – S 24 AS 6803/18
Job centers are not required to cover costs for the unlawful continued use of an apartment
The Stuttgart Social Court has ruled that costs incurred by a recipient of benefits under the German Social Code, Book II (SGB II), in enforcement protection proceedings because he fails to comply with his obligation to vacate his rented apartment cannot be covered by the job center as housing costs.
Following a termination of his lease by his landlord and an eviction lawsuit, the plaintiff had agreed in a court settlement to vacate his rented apartment by a specific date. Since he could not find alternative accommodation and faced homelessness, he remained in the apartment even after this eviction date and filed a motion for a stay of execution with the local court. The court then suspended the eviction for a short period but set a sum of €850, which the plaintiff was required to pay in cash to the responsible bailiff as "compensation for the extended use of the apartment." The plaintiff then sought reimbursement of this amount from the job center as housing and heating costs pursuant to Section 22 of the German Social Code, Book II (SGB II).
The Stuttgart Social Court dismissed the lawsuit.
According to the Social Court, the costs of €850 were not incurred through proper use of the apartment, but rather as compensation for the plaintiff's unlawful continued use of the apartment after the eviction deadline had expired. The Job Center had already covered the additional compensation for use incurred after the termination of the lease until the plaintiff actually moved out. Including the €850 paid by the plaintiff as a result of the enforcement court order under the housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), would be an overreach of the definition.
An appeal has been filed with the State Social Court.
juris editorial team.
Source: Press release from the Stuttgart Social Court, excerpt of current case law (as of August 2019), dated August 2, 2019
Source: www.juris.de
2.5 – SG Karlsruhe, judgment of March 21, 2019 – S 14 AS 3653/18
Risk of recurrence as a legitimate interest in a declaratory judgment for a single mother with two minor children receiving "Hartz IV" benefits
Summary:
The integration administrative act (EGVA) is also substantively unlawful because it exceeded the six-month maximum review period stipulated in Section 15 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), despite the assignment of an expiry date to the EGVA. An EGVA is unlawful if it does not contain specific provisions regarding the review and updating of its content and, in particular, does not specify a latest date for this, but merely subjects the decisions to a nonspecific "regular" review and update (cf. Federal Social Court judgment of March 21, 2019, Case No.: B 14 AS 28/18 R, previously Baden-Württemberg State Social Court judgment of May 15, 2018, Case No.: L 9 AS 4118/17).
Source: www.socialcourt-karlsruhe.de
3. Decisions of the social courts on employment promotion law (SGB III)
3.1 – SG Stuttgart, judgment of October 2, 2018 – S 6 AL 1479/18
Granting of a start-up subsidy: Priority of mediation is not a criterion for the application of the law
The Stuttgart Social Court has ruled that a decision rejecting a start-up grant due to a failure to exercise discretion is unlawful and that the employment agency must be ordered to issue a new decision if, in accordance with its supra-regional instructions, it treats the priority of placement as a factual element and not as a discretionary consideration.
The Social Court ruled that an abuse of discretion exists if the employment agency does not conduct an individual examination of the case, but instead rejects the granting of the start-up subsidy across the board, citing an alleged priority for placement.
Further information: www.juris.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Munich, decision of 16.07.2019 – L 18 SO 46/19 B ER
Social assistance: No entitlement to reimbursement of treatment costs if a private insurer is obligated to conclude a basic tariff
Principle (Juris):
There is no legal basis for an insurer's requirement that the person to be insured undergo medical examinations at their own expense before concluding a basic health insurance policy.
Source: www.gesetze-bayern.de
4.2 – Baden-Württemberg State Social Court, Judgment of 17 April 2019 – L 2 SO 4004/18
The plaintiff seeks, within the framework of basic income support for the elderly and those with reduced earning capacity under the German Social Code Book XII (SGB XII), the regular reimbursement of travel and accommodation costs for visiting his grandchildren in Switzerland.
In principle, a grandfather has no entitlement to an increase in the standard rate pursuant to Section 27 Letter a Paragraph 4 Sentence 1 No. 2 SGB XII for visits to his grandchildren.
Guiding principle (Editor):
In the case of the plaintiff, a grandfather, in relation to his grandchildren living far away in Switzerland, there is no atypical additional need regarding travel and accommodation expenses. Maintaining social contacts, even with relatives living in other cities, is a typical need, regularly encountered even by recipients of basic income support, and is taken into account when determining standard benefits. The case law concerning travel expenses for visitation rights with children of separated parents is not comparable.
Source: socialcourtsability.de
4.3 – Baden-Württemberg State Social Court, Judgment of 17 April 2019 – L 2 SO 4356/18
Care allowance pursuant to Section 37 of the German Social Code, Book XI (SGB XI) is not to be considered as an asset within the framework of the assessment of reasonableness when assuming funeral costs pursuant to Section 74 of the German Social Code, Book XII (SGB XII), due to its special purpose.
Guiding principle (Editor):
The care allowance payment received on the day of the plaintiff's husband's death is not to be taken into account when considering the question of need or reasonableness with regard to the funeral expenses to be borne by the plaintiff, which are eligible for consideration and which the defendant has in principle also acknowledged in this respect.
Source: socialcourtsability.de
4.4 – LSG Berlin-Brandenburg, Judgment of 11 July 2019, Case No. L 15 SO 181/18
Commentary and full text by attorney Sebastian Lingens:
The Berlin-Brandenburg Higher Social Court (LSG Berlin-Brandenburg) ruled on July 11, 2019, under file number L 15 SO 181/18, that a Czech national without a residence permit, but who is lawfully residing in Germany due to the lack of a determination that freedom of movement does not apply, is entitled to bridging benefits under Section 23 Paragraph 3 Sentence 5 of the German Social Code, Book XII (SGB XII). The period is not limited to one month, but can extend over several years (in this case, almost two years).
The court essentially justifies this by stating that EU citizens residing in Germany under a de facto tolerated status cannot be permanently excluded from social benefits. This would be incompatible with the fundamental right to a dignified minimum standard of living guaranteed by Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law.
I have received the verdict, and it should be published soon. The appeal has been granted.
Sebastian Lingens,
Lawyer,
Specialist Lawyer for Social Law
Badensche Str. 33, 10715 Berlin
Tel: 030 609 876 580
Fax: 030 609 876 589
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – State Social Court of Saxony-Anhalt, decision of 18 March 2019 – L 8 AY 8/18 B ER – legally binding
Guiding principle (Editor):
The Senate has no fundamental objections to the application of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act.
Source: socialcourtsability.de
5.2 – State Social Court of Saxony-Anhalt, decision of 11.06.2019 – L 8 AY 5/19 B ER – legally
binding. Headnote (Editor):
On the question of the constitutionality of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act.
Principle (Juris)
1. Reinstatement to the previous status is to be granted if the actual delivery of the notice of appeal to the mail distribution center on the afternoon of Maundy Thursday is sufficiently substantiated, since the appellant can, according to the Postal Universal Service Ordinance, rely on the expectation that the notice of appeal will be received by the LSG on the Tuesday after Easter (reference to BGH, decision of July 19, 2007 – I ZB 100/06 –, juris).
2. Preliminary legal protection in the area of suspensive effect requires an objection; that is, the authority must have previously interfered with existing legal positions. If, however, the aim is to obtain higher benefits without higher benefits having been granted with final and binding effect for the period in dispute, preliminary legal protection can only be obtained by filing an application for a preliminary injunction pursuant to Section 86b Paragraph 2 Sentences 1 and 2 of the Social Court Act (SGG).
3. The Senate has no fundamental objections to the application of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable since August 3, 2016.
Source: socialcourtsability.de
5.3 – Social Court Dresden, decision of 02.08.2019 – S 20 AY 55/19 ER
Regarding the failure to reassess or update basic benefits according to § 3 AsylbLG since 2017
Guiding principle (Editor):
1. This increase in benefit entitlement arises directly from the law. The standard benefit rate under the Asylum Seekers' Benefits Act (AsylbLG) is linked to the increase in standard benefits under Book XII of the German Social Code (SGB XII). As soon as the changes in benefits under SGB XII are established, the benefits under Section 3 of the AsylbLG must be adjusted accordingly. The updating of the standard benefit rates serves to dynamically adjust benefits in order to avoid years of static adherence to rates that are no longer realistic (Wahrendorf, AsylblG, Commentary 2017, Section 3, para. 67). The benefit recipient therefore has an enforceable right to benefits at the adjusted rate (contra Hohm, ZFSH SGB 2/2019, pp. 68 ff.).
Source: socialcourtsability.de
Legal tip:
See also the decision of the Lower Saxony-Bremen State Social Court – Case No.: L 8 AY 13/19 B dated July 25, 2019
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
