1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Saxon State Social Court, decision of 11.09.2019 – L 7 AS 857/19 B ER – legally binding
Guiding principle (Editor)
1. There is no breach of duty pursuant to Section 31 Paragraph 1 Sentence 1 No. 1 of the German Social Code, Book II (SGB II), since the integration agreement does not regulate all details of the work opportunity itself, but required specification by an allocation decision (regarding the requirements for an integration agreement as a legal basis for a work opportunity, see, e.g., the Federal Social Court (BSG) decision of August 22, 2013 – B 14 AS 75/12 R).
2. There is also no breach of duty under Section 31 Paragraph 1 Sentence 1 No. 2 of the German Social Code, Book II (SGB II) with regard to the work opportunity assigned to the applicant under Section 16d SGB II. It is already doubtful whether the respondent specified the work to be performed by the applicant with sufficient precision (regarding the indispensable content of the provision for the assignment of a work opportunity under Section 16 Paragraph 3 Sentence 2 SGB II in the versions applicable until December 31, 2008, see, e.g., Federal Social Court (BSG) judgment of August 27, 2011 – B 4 AS 1/10 R), since the assignment notice contains no provision regarding the distribution of daily working hours (regarding the corresponding requirement, see, e.g., Federal Social Court (BSG) judgment of August 22, 2013 – B 14 AS 75/12 R).
3. In any case, the eight-month assignment of a work opportunity is unlawful if the implementing agency is required to decide, based on the results of a two-week induction and orientation period, which also includes a medical assessment, whether the benefit recipient is physically, mentally, or psychologically capable of performing the assigned work, as this decision rests solely with the benefit provider. The suitability of a work opportunity is governed by Section 10 of the German Social Code, Book II (SGB II) (see Section 10, Paragraph 3 SGB II) and is not only a criterion for the legality of such an assignment but also for determining a breach of duty within the meaning of Section 31, Paragraph 1, Sentence 1, No. 2 SGB II. The benefit provider must decide on this matter.
4. The decision as to whether to employ the beneficiary under the conditions set by the benefit provider in an activity to be provided by the provider remains solely with the implementing agency (regarding Section 16 Paragraph 3 Sentence 2 SGB II aF, see, for example, BSG of 13.04.2011 – B 14 AS 98/10 R).
Source: socialcourtsability.de
See also Juris
order for suspensive effect against so-called sanction notices
Principle (Juris):
The need for legal protection for an application for an order suspending the effect of an action against a decision, executed at the time of the court's decision, on the determination of the complete cessation of benefits and the revocation of the benefit award, does not cease if, due to a continuing emergency situation, the suspension of enforcement is a possibility.
1.2 – LSG NRW; Decision of 19.08.2019 – L 6 AS 1953/18 NZB
SGB II: Graduation ball costs not an additional need.
The LSG Essen has ruled that the job center does not have to cover the costs of participating in a non-compulsory school event, as such an event does not constitute an unavoidable need.
Summary:
The application of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) fails because the costs in question are not recurring expenses covered by this provision, but rather one-off expenses. There is no unintended regulatory gap that would require closing by analogy to avoid violations of fundamental rights. Peak expenses arising from expenditures generally covered by the standard allowance are addressed through loans under Section 24 Paragraph 1 of the SGB II. Furthermore, the graduation ball was not a school event, attendance at which – however desirable – would have been mandatory. Moreover, it cannot be demonstrated that all other options (e.g., support from the school's parent-teacher association) were exhausted to avoid using public funds. From this perspective alone, constitutional arguments for extending the provision, contrary to its clear wording, to the one-off expenses claimed here are unconvincing. The same applies to an interpretation that goes beyond the exhaustive list in Section 28 Paragraphs 2 to 7 of the German Social Code, Book II (SGB II), as a need for education and participation.
Source: www.juris.de
Note: Click here for the full text of the decision
1.3 – Berlin-Brandenburg State Social Court, decision of 16 September 2019 – L 31 AS 1627/19 B ER – legally binding;
EU citizen; pregnancy; obstacle to deportation
Guiding principle (Editor)
1. The pregnant Bulgarian applicant who is unable to travel has – at least – a residence status for humanitarian reasons during the period of protection under the Maternity Protection Act and is therefore also entitled to benefits under the German Social Code, Book II or Book XII.
2. From a constitutional perspective, considering human dignity in conjunction with the social welfare principle, it is simply inconceivable that, due to an obstacle to deportation, departure cannot be legally demanded, while at the same time the applicant is not granted any entitlement to benefits, so that she would have to give birth to her child without health insurance coverage, so to speak “on the street”.
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Wiesbaden, judgment of – S 5 AS 811/16
"Gambler" must repay Hartz IV benefits
The Social Court of Wiesbaden has ruled that a Hartz IV recipient who sells his house due to gambling debts brings about his own need for assistance and must therefore repay the Hartz IV benefits received.
Summary:
According to the Social Court, the plaintiff did not have a "compelling reason" to sell his house to pay off his gambling debts. A compelling reason exists if, considering all the specific circumstances of the individual case, there are conditions under which, after a reasonable balancing of the individual's interests with the interests of the general public – i.e., the taxpayer – the individual's interests must take precedence. In this case, however, it was objectively possible and reasonable for the plaintiff to ask the police for help. There was no reason to assume that the police would not have been able to guarantee the plaintiff's safety.
The verdict is not legally binding.
juris editorial team.
Source: Press release from the Wiesbaden Social Court dated September 24, 2019: www.juris.de and sozialgerichtsbarkeit.hessen.de
2.2 – SG Potsdam, decision of 28.08.2019 – S 23 AS 521/19 ER
A very long time ago, a very long time ago... Statute of limitations for reimbursement claims under the German Social Code, Book II (SGB II), an article by attorney Kay Füßlein
Job centers' claims for reimbursement are also subject to a statute of limitations; the only question is: when?
According to Section 50 of the German Social Code, Book X (SGB X), this is four years after the end of the calendar year in which the administrative act became legally binding pursuant to paragraph 3 (usually one month after notification). After that, the clock starts ticking for the statute of limitations.
To extend the limitation period to 30 years, a further administrative act is required in accordance with Section 52 of the German Social Code, Book X (SGB X).
However, this "enforcement administrative act" was frequently (or not at all) issued in the past
In its decision of 14 December 2018, L 34 AS 2224/18 B ER, the LSG Berlin-Brandenburg therefore allowed the objection of the statute of limitations to apply if the enforcement order is missing.
The Social Court of Potsdam also endorsed this view in its decision of August 28, 2019.
More information: www.ra-fuesslein.de
3. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
3.1 – State Social Court of Lower Saxony-Bremen, Judgment of 27 August 2019 – L 7 AL 124/18
Principle (Juris):
The commissioning of an external scanning service provider by the Federal Employment Agency for the purpose of processing incoming mail for electronic record keeping does not release the sender from the obligation to provide timely proof of receipt.
Source: www.rechtsprachung.niedersachsen.de
3.2 – Hamburg State Social Court, Judgment of 31 July 2019 – L 2 AL 50/18
A legally established waiting period precludes entitlement to a start-up grant.
Guiding principle (Editor)
1. Receipt of benefits under the German Social Code, Book III (SGB III) is a necessary factual prerequisite for entitlement to a start-up grant in the case of unemployment (referring to the Federal Social Court (BSG), decision of October 23, 2014 – B 11 AL 52/14 B).
2. The conditions for a concrete claim for payment are also not met in cases where the law orders a suspension of the claim (LSG North Rhine-Westphalia, judgment of 25 September 2014 – L 9 AL 219/13).
Source: socialcourtsability.de
3.3 – SG Osnabrück, Judgment of 26.07.2019 – S 43 AL 68/19 ER
No further funding for a hearing-impaired person's second training.
The Osnabrück Social Court has ruled in preliminary legal proceedings that the Federal Employment Agency does not have to cover the costs of a (second) training course for a severely hearing-impaired person to become a childcare worker, as it is generally not obligated to finance the best possible training, but only training necessary for integration into the labor market.
Summary:
The Social Court held that the rejection of further funding for the applicant was lawful. It explicitly left open the question of whether practicing the profession of childcare worker was even possible given the applicant's undisputed limitations. Certain doubts existed in this regard, but these could not be clarified in preliminary legal proceedings. In any case, the court found that the applicant had not credibly demonstrated a so-called labor market necessity. The applicant is only entitled to receive the training necessary for integration into the labor market from the Federal Employment Agency, not necessarily the best possible training. The applicant is employable in the primary labor market with her existing qualifications.
The court also considered the UN Convention on the Rights of Persons with Disabilities in its deliberations. However, the right to non-discriminatory access to employment other than the current occupation is guaranteed, since even without the applicant's disability, a second vocational training would depend on labor market necessity. Such necessity does not exist in this case.
The decision is not yet legally binding. It has been appealed to the Higher Social Court of Celle-Bremen (case number: L 11 AL 70/19 B).
juris editorial team.
Source: Press release from SG Osnabrück dated 23.09.2019
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, Judgment of 25 July 2019 – L 7 SO 1686/17
Principle (Juris)
1. Section 54 Paragraph 3 of the German Social Code, Book XII (SGB XII) does not contain any further regulations regarding the type and amount of benefits. When caring for disabled children and adolescents in a foster family, the application of the youth welfare provision of Section 39 of the German Social Code, Book VIII (SGB VIII) is justified (cf. Senate judgment of April 23, 2015 – L 7 SO 304/14 – juris regarding the calculation of benefits in the case of full-time foster care of an adult).
2. If the actual costs for material expenses and for the care and upbringing of the child or young person cannot be determined (Section 39 Paragraph 4 Sentence 1 of the German Social Code, Book VIII), the foster care allowance is to be granted as a monthly lump sum, unless the specific circumstances of the individual case require different benefits (Section 39 Paragraph 4 Sentence 3 of the German Social Code, Book VIII). According to Section 39 Paragraph 4 Sentence 5 of the German Social Code, Book VIII, the amount of the lump sum to be granted is determined by the conditions prevailing at the foster care placement.
3. A different assessment of benefits based on the specific circumstances of the individual case requires a substantiated explanation of the special circumstances and a far above-average educational effort.
Source: socialcourtsability.de
4.2 – LSG NRW, judgment of June 17, 2019 – L 20 SO 479/17
No legal fees if interest is not charged.
The LSG Essen has ruled that the omission of an explicit interest decision in a notice granting a back payment of social benefits is not to be understood as a tacit rejection of the claim for interest.
Summary:
According to the State Social Court, the objection raised against the alleged rejection decision is inadmissible if there is no (implied) decision regarding interest. Therefore, it was unsuccessful, and thus reimbursement of costs is not possible.
Whether a decision regarding interest has been made (and thus a contestable administrative act issued) depends solely on the interpretation of the administrative announcement, taking into account the specific circumstances of the individual case. The implementation order in this case contains no explicit decision regarding interest. Nor can such a meaning be inferred from it through interpretation. A reasonable recipient familiar with the circumstances of the case, and in particular one who would have known the actual events leading up to the issuance of the order, would not have been required to understand the absence of an explicit decision regarding interest as a tacit rejection of the claim for interest.
An appeal against the decision has been lodged with the Federal Social Court (case no.: B 8 SO 5/19 R).
juris editorial team.
Source: Press release from the LSG Essen dated 25.09.2019
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – Osnabrück Social Court, Decision of September 4, 2019 – S 44 AY 40/19 ER
Headnote (Editor)
1. The requirements of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are not met, because the applicant's refusal to submit a declaration of voluntary residence to the Somali embassy does not fulfill the elements of Section 1a Paragraph 3 of the AsylbLG. Furthermore, there is no abuse of rights influencing the applicant's residence permit.
2. The term "voluntariness" can – according to the jurisprudence of the Federal Social Court (BSG) – only mean that the foreigner returns to their home country "of their own free will" (BSG, Judgment of October 30, 2013, B 7 AY 7/12 R). The distinction between a legally required will and an internal will is ultimately not productive. A person obligated to leave the country who must submit a declaration of voluntariness despite their contrary will is forced to lie, which is unacceptable in light of the benefit reduction at issue here. An alternative interpretation of the declaration, such as that undertaken by the Federal Administrative Court (Judgment of November 10, 2009, 1 C 19/08), is not possible.
Source: socialcourtsability.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Third Act Amending the Asylum Seekers' Benefits Act – Tamme – juris, 26.09.2019:
6.2 – Berlin-Brandenburg Higher Social Court: Long-term “bridging benefits” for EU citizens, an article by Claudius Voigt.
There is (to my knowledge) the first ruling in a main proceeding concerning the issue of “bridging benefits” under Section 23 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) for EU citizens who are otherwise excluded from benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII). The Berlin-Brandenburg Higher Social Court (15th Senate) ruled as follows on July 11, 2019 (L 15 SO 181/18):
6.3 – Upcoming events: Neuss, Remscheid, Solingen – how much can a Hartz IV apartment cost?
The 29th Chamber of the Düsseldorf Social Court intends to decide on four cases concerning basic income support for job seekers based on oral proceedings:
Wednesday, October 2, 2019, 1st floor, Room 139,
9:30 a.m. S 29 AS 4533/17 to Kaarst (Rhein-Kreis Neuss)
10:15 a.m. S 29 AS 1037/18 to Neuss (Rhein-Kreis Neuss)
10:45 a.m. S 29 AS 3925/16 to Remscheid
11:30 a.m. S 29 AS 3566/16 to Solingen
Source: socialcourtsability.de
6.4 – Recommendations of the German Association for the simplification and further development of the Twelfth Book of the Social Code (SGB XII) – Social Assistance – dated 11 September 2019,
available at: www.deutscher-verein.de
6.5 – KEAs (Cologne Unemployed in Action): Schoolbooks are paid for by the job center
More information: www.die-keas.org
6.6 – Extra rent subsidy
Climate bonus for Berliners receiving Hartz IV benefits
From October, Berlin's Hartz IV households will be able to pay slightly more for their housing. To enable them to rent modernized accommodations with insulated facades, well-sealed windows, or energy-efficient heating systems, the Senate is introducing a climate bonus for the first time.
An extra €31 rent subsidy per person in an energy-efficiently renovated apartment!
More information: www.bz-berlin.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
