1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, judgment of 08/29/2019 – B 14 AS 43/18 R
Unemployment benefit II – Accommodation and heating costs – Determination of living space requirements for temporary households – Exercise of visitation rights – Individual case review
Custody rights can lead to a larger apartment for Hartz IV recipients – but each case requires individual assessment
Guiding principle (Editor)
1. When determining the specific appropriateness, despite the right of access between parents and child protected by Article 6 Paragraphs 1 and 2 of the Basic Law, higher accommodation costs or space requirements of the parent entitled to access are not to be recognized as a matter of principle.
2. Rather, a case-by-case decision is required, taking into account, among other things, the design of the right of access, the age of the child, the living situation and the housing conditions of the parent entitled to access.
3. Based on these standards, the decision of the LSG that the single plaintiff's right of access to his then four-year-old daughter would also be granted in an apartment of no more than 50 square meters is not objectionable.
Source: www.bsg.bund.de
1.2 – BSG, judgment of August 29, 2019 – B 14 AS 49/18 R
Unemployment benefit II after dropping out of training
Guiding principle (Editor):
1. If a recipient of assistance drops out of their training, the job center may not therefore reclaim all payments of unemployment benefit II.
2. Despite the plaintiff's repeated unexcused absences, the findings of the LSG do not indicate that the high requirements outlined above are met, especially since the plaintiff was in a publicly funded vocational training program.
Source: www.bsg.bund.de
1.3 – BSG, judgment of 08/29/2019 – B 14 AS 50/18 R
Guiding principle (Editor)
1. Section 34 of the German Social Code, Book II (SGB II) is linked to the exception provision of Section 92a of the German Federal Social Assistance Act (BSHG) and requires conduct that is reprehensible according to the values of the SGB II (see only BSG of 16.4.2013 – B 14 AS 55/12 R).
Such a situation does not exist if a German citizen gives up employment abroad and moves to Germany with her children without having previously sought a livelihood within the federal territory. The same applies to the plaintiff as husband and father, based on Article 6, paragraphs 1 and 2 of the Basic Law.
Source: www.bsg.bund.de
1.4 – BSG, judgment of 08/29/2019 – B 14 AS 42/18 R
Guiding principle (Editor)
1. The payment of the insurance into the loan account of the spouses is not to be regarded as readily available funds and therefore not as income to be taken into account according to § 11 SGB II.
2. The repayment of the previously debited loan installment by the bank to the current account is also not to be considered as income, because this did not result in any (further) income for the spouses.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
2.1 – Hessian State Social Court, Decision of 21.08.2019 – L 7 AS 285/19 B ER
Guiding principle (Editor):
The Senate is of the opinion that the limitation or exception provision of Article 24(2) of Directive 2004/38/EC also justifies unequal treatment with regard to the receipt of social benefits in the case of a right of residence derived from Article 10 of Regulation (EU) 492/2011 (see also North Rhine-Westphalia Higher Social Court, decision of 14 September 2017, L 21 AS 1459/17 B ER, Juris, para. 50; contra: referral decision of the North Rhine-Westphalia Higher Social Court of 14 February 2019).
Source: socialcourtsability.de
2.2 – LSG Lower Saxony-Bremen, decision of 16 July 2019 (L 11 AS 190/19 B ER):
Guiding principle Dr. Manfred Hammel:
An authorization to issue a ban on entering a job center is an outflow of the right of domicile to be exercised by the managing director (§ 44d para. 1 sentence 1 SGB II), which exists as a necessary annex to the public-law expertise.
An applicant disrupted the operations of a job center by, for example, tearing out the caseworker's telephone and throwing it around, as a result of which this applicant was also convicted of property damage (§ 303 StGB) and fined.
Ripping out and throwing away a company phone no longer merely represents a clear transgression, but a criminal act that, by its very nature, constitutes aggressive and threatening behavior. This clearly crosses the line from being a mere "difficult visitor.".
The discretionary decision regarding the imposition of a ban on entering the premises and its duration (approx. 14 months) also does not raise any serious concerns, as the applicant remains free to contact the job center by mail, telephone, email or through his lawyer during this time.
Source: socialcourtsability.de
Note:
Violence against job center employees: Ban confirmed.
The LSG Celle-Bremen has ruled that aggressively violent behavior in the job center can result in a ban from the premises.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Dessau-Roßlau Social Court, Judgment of 20 June 2019 – S 3 AS 1283/18
Contrary to the opinion of the job center, the costs for the schoolbooks that cannot be loaned out are not financeable from the standard allowance, here 76 euros, but must be covered according to § 21 para. 6 SGB II.
Guiding principle (Editor)
1. The entitlement to reimbursement of the costs for school books is based on Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
2. The purchase of mandatory school textbooks is incurred only once per school year. Within an approval period, which is generally set at 12 months, it also typically arises only once. However, it is likely to be incurred again in the following school year, albeit in a different amount (for the assumption of a one-time need: see Lower Saxony-Bremen State Social Court, judgment of December 11, 2017 – L 11 AS 349/17). This, however, cannot be the standard. Otherwise, the regulation would no longer be applicable to students in their final year. Therefore, Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) does not apply according to its wording. A constitutionally compliant interpretation of Section 21 Paragraph 6 SGB II is required (see Federal Social Court, judgments of May 8, 2019 – B 14 AS 6/18 R; B 14 AS 13/18 R).
3. Because in 2010 the Federal Constitutional Court ruled that a hardship clause was necessary – which was then introduced by the federal legislature on June 3, 2010 – to take account of special situations in which a higher above-average need arises and the standard allowance proves to be insufficient (Federal Constitutional Court, judgment of February 9, 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09).
Source: socialcourtsability.de
Juris note:
1. The SGB II benefit provider must bear the costs for non-loanable schoolbooks in accordance with § 21 para. 6 SGB II in a constitutionally compliant interpretation.
2. Conflicts between the federal government and the states regarding the financing of school education, including for pupils receiving benefits under the German Social Code, Book II (SGB II), must not be played out at the expense of the pupils receiving SGB II benefits (Federal Social Court [BSG], judgments of May 8, 2019 – B 14 AS 6/18 R; B 14 AS 13/18 R; contrary to: Federal Social Court [BSG], judgment of September 10, 2013 – B 4 AS 12/13 R).
3. The federal legislature, within its legislative competence under Article 74, paragraph 1, number 7 of the Basic Law (public welfare), bears the responsibility for ensuring a dignified minimum standard of living. This responsibility takes precedence over the religious sovereignty of the Länder (federal states).
3.2 – SG Hildesheim 46th Chamber, Judgment of 14.09.2017, S 46 AS 74/14
Principle (Juris):
In the case of central hot water supply, the values in Section 21 Paragraph 7 Sentence 2 Numbers 1 to 4 of the German Social Code, Book II (SGB II) cannot be used to determine the appropriateness of the costs of hot water preparation. Instead, the values from the local or nationwide operating cost index can be used.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – Lower Saxony-Bremen State Social Court, 11th Senate, decision of 17 June 2019, L 11 AL 27/19 B ER
Permit for commercial temporary employment – revocation – reliability of the temporary employment agency – compliance with labor law obligations – negative prognosis decision – organizational and supervisory structure
Principle (Juris)
1. Insofar as the revocation of a permit for the commercial temporary employment of employees requires consideration of a representative body of the permit holder (here: sole managing director of a GmbH) within the framework of the reliability assessment, his conduct in the context of working for another company may also be decisive.
2. The unreliability of a temporary employment agency can also arise from a combination of minor violations of labor law regulations, which in themselves would not justify a refusal (following the decision of the Lower Saxony-Bremen State Social Court of 27 June 2018 – L 7 AL 22/18 B ER –).
3. The reliability required for the permit to provide temporary workers presupposes the establishment of an organizational and supervisory structure suitable for preventing violations of existing legal regulations to the detriment of temporary workers (following the decision of the Lower Saxony-Bremen State Social Court of 21 December 2018 – L 7 AL 163/18 B ER –).
Source: www.rechtsprachung.niedersachsen.de
5. Decisions of the social courts on asylum law
5.1 – SG Osnabrück, judgment of June 11, 2019 – S 44 AY 14/17
Guiding principle (Editor)
: 1. Reduction of asylum seeker benefits for refusal to cooperate in obtaining a passport is constitutional.
2. However, the court considers it problematic that even the physical subsistence minimum is not met, as the recipient is generally not granted the needs listed in Section 3 (clothing). The constitutional concerns ultimately do not prevail here, however, because the legislator has created a hardship clause in Section 1a Paragraph 2 Sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG), meaning that such needs can nevertheless be covered in individual cases.
Source: socialcourtsability.de
5.2 – SG Oldenburg, decision of 12.07.2019 – S 26 AY 18/19 ER, S 25 AY 15/19 ER
Benefits for asylum seekers must also be adjusted annually.
In two preliminary injunction proceedings, the SG Oldenburg has ordered the city of Wilhelmshaven and the city of Oldenburg to recalculate payments to asylum seekers, taking into account annual adjustments to the level of need.
The Oldenburg Social Court has ordered the city of Wilhelmshaven and the city of Oldenburg to recalculate payments to asylum seekers, taking into account annual adjustments to the level of need.
The Social Court held that the determination of the amount of benefits granted to asylum seekers under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) was flawed. Despite the lack of publication by the Federal Ministry, the authority responsible for benefits under the AsylbLG is independently obligated to make the annual adjustments to the benefits pursuant to Section 3, Paragraph 4, Sentence 1 of the AsylbLG. This provision directly establishes an obligation for the authority to adjust the benefit amount annually, even without publication by the Federal Ministry. As a result, the applicants in the proceedings before the Social Court each have an additional entitlement to benefits amounting to approximately €16 per month.
These decisions are only preliminary, as they were preliminary injunction proceedings and the related and still pending main proceedings have not yet been decided. Neither decision is yet legally binding.
juris editorial team.
Source: Press release from the Oldenburg Social Court dated August 27, 2019: www.juris.de
Note:
And the federal government is adjusting downwards from 1.09.2019:
New benefit rates for asylum seekers
The rates of allowance for asylum seekers will be recalculated on September 1, 2019.
Cash benefits for single individuals not living in communal accommodation will decrease from €354 to €344. Costs for electricity and apartment maintenance will henceforth be provided as in-kind benefits. Furthermore, the funding gap for asylum seekers and those with tolerated stay status who are undertaking vocational training or university studies will be closed. They will now be able to receive benefits under the Asylum Seekers' Benefits Act even after the 15th month of their stay in Germany.
5.3 – Munich Social Court, decision of 13 August 2019 – S 42 AY 37/19 ER
Guiding principle (Editor):
The applicant requests, in expedited proceedings, monetary benefits under the Asylum Seekers' Benefits Act (AsylbLG) instead of benefits in kind in the form of a bus ticket for the Ingolstadt public transport system, which is denied here.
Summary: In the present case, grounds for an injunction are also lacking because any abstract, supra-regional needs not specified in detail by the applicant are effectively met by the respondent through the provision of a minibus for ten hours a day, every weekday, for trips outside the local area, or by issuing train tickets as needed. Whether the applicant has a legal entitlement to these services can remain undecided in the context of these preliminary proceedings, since the needs are being met. Therefore, it is irrelevant – at least in these preliminary proceedings – that the respondent has not formally replaced the cash payment for transportation with in-kind benefits by means of an administrative act based on Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG).
The Chamber's denial of the grounds for an injunction is also not inconsistent with the decision of the Bavarian State Social Court of November 19, 2018 (L 8 AY 23/18 B ER). In the cited decision, the grounds for an injunction were affirmed only because there was currently no formally and materially lawful discretionary decision regarding the provision of benefits in kind under Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG).
Source: socialcourtsability.de
Juris note:
No first of the benefit in kind by monetary payment
Guiding principles:
1. To establish grounds for issuing a preliminary injunction in the form of a regulatory order, it is not sufficient that needs are conceivable in the abstract that might not be met if a monetary benefit were replaced by a benefit in kind. Any such needs must be specifically identified.
2. An appeal against the rejection of a preliminary injunction is not admissible solely because a future-oriented application is filed. The provisional nature of the expedited proceedings precludes recourse to Section 144 Paragraph 1 Sentence 2 of the Social Court Act (SGG), even in asylum seeker benefits law.
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Social law information from Bernd Eckhardt, Nuremberg – SOCIAL LAW-JUSTAMENT 8/2019
The August issue focuses on the activities of the Federal Employment Agency's central debt collection service (the "Collection Service" in Recklinghausen) in the area of social security law, Book II (SGB II). This central agency is responsible for collecting repayments owed by job centers, employment agencies, and family benefits offices. However, the Federal Social Court ruled in February 2018 that the Collection Service can only operate effectively if it has been formally authorized to collect debts through a legally valid resolution passed by the governing body. This is generally not the case. The current issue details the consequences of this situation and explains how, for example, installment plans or even zero-payment agreements can be arranged.
In the second part of the article on "debt collection services" in the September issue of SOZIALRECHT-JUSTAMENT, the issue of family benefits office claims for reimbursement will be discussed in detail.
6.2 – Waiting period for unemployment benefit I after leaving work due to relocation, an article by attorney Helge Hildebrandt
Anyone who terminates their employment usually has some reason – be it illness, the unreasonableness of the job, dissatisfaction with the employer, lack of career advancement opportunities, moving in with a partner, or some other change. If there is no "important reason" for terminating the employment relationship as defined by case law, this leads to a "waiting period" of usually three months, during which the Federal Employment Agency does not pay unemployment benefits (ALG I).
More information: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
