1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Berlin-Brandenburg State Social Court, Judgment of 26 September 2019 – L 31 AS 1574/17
Request to apply for a pension – unfairness – discretionary considerations – mandatory contributions due to caregiving activities
Guiding principle (Editor):
Regarding the plaintiff's claim to early retirement benefits, here in favor.
Note:
The Senate granted leave to appeal pursuant to Section 160, Paragraphs 1 and 2, No. 1 of the Social Court Act (SGG) due to the fundamental question of the scope of the principle of official investigation (Section 20 of the Tenth Book of the Social Code) in the case of a request to submit an application for early retirement benefits (Section 12a, Paragraph 1, Sentence 2, No. 1 of the Second Book of the Social Code). Furthermore, the question arises whether the Federal Social Court (BSG) adheres to its established case law that the benefit recipient must present the circumstances of the atypical case, even if these circumstances only come to light through the court's official investigation.
Principle (Juris)
: If the atypical circumstances of the individual case, which should have been taken into account in the defendant's decision, only come to light through the court's official investigation, the defendant's exercise of discretion remains free from errors of discretion.
Source: socialcourtsability.de
1.2 – North Rhine-Westphalia State Social Court, decision of 29 July 2019 – L 2 AS 709/19 NZB – legally binding
Guiding principle (Editor):
1. Appeal admitted, because the only remaining point of contention here, namely the extent to which a person who has come of age is liable under Section 1629a of the German Civil Code (BGB), has not yet been conclusively clarified.
2. The Federal Social Court (BSG), referring to civil law commentary, has so far only ruled that this liability does not extend to assets exempt from seizure under Section 811 of the Code of Civil Procedure (ZPO) (see BSG, Judgment of November 28, 2018 – B 14 AS 34/17 R). The BSG has not, however, explicitly ruled on whether a bank account balance based on the transfer of exempt social benefits is similarly protected. In this respect, the protection against seizure is governed not by Section 811 of the Code of Civil Procedure (ZPO), but by Section 850k of the Code of Civil Procedure (ZPO).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Oldenburg, judgment of June 13, 2019 – S 43 AS 1214/19
Delmenhorst's concept on accommodation costs is conclusive.
The Oldenburg Social Court has ruled that the concept developed by the city of Delmenhorst for determining the appropriate accommodation costs for benefit recipients under the German Social Code, Book II (Hartz IV), is conclusive.
Further information: www.juris.de
2.2 – Berlin Social Court, decision of 30 August 2019 – S 205 AS 7068/19 ER – legally binding
Suspension of enforcement – lack of jurisdiction of the basic income support provider
Guiding principle (Editor):
In the area of basic income support for job seekers under Book II of the German Social Code (SGB II), grounds for an injunction can only be assumed if the shortfall exceeds 30 percent of the standard benefit rate. This corresponds to the provision of Section 31a Paragraph 3 Sentence 1 of Book II of the German Social Code (SGB II), according to which the physical subsistence minimum is only affected if the standard benefit rate is reduced by 30 percent, since supplementary benefits in kind or benefits of monetary value are only to be provided if the reduction exceeds this amount (cf. Higher Social Court of Berlin-Brandenburg, March 30, 2007 – L 5 B 225/07 AS, L 5 B 225/07; Higher Social Court of Berlin-Brandenburg, April 14, 2010 – L 18 AS 108/10 B ER; Higher Social Court of North Rhine-Westphalia, November 30, 2012 – L 2 AS 2150/12 B ER). This is further supported by Section 43 Paragraph 2 of the German Social Code, Book II (SGB II), according to which offsetting counterclaims against the entitlement to standard benefits is generally permissible, as long as the limit of 30 percent of the standard benefit is not exceeded. This regulation has been deemed constitutional by the Federal Social Court (BSG 9 March 2016 – B 14 AS 20/15 R).
Note: Principle (Juris)
1. An application for an interim injunction to suspend enforcement regularly lacks grounds for the injunction, since the assets and income of the judgment debtor are sufficiently protected by the attachment regulations.
2. The basic income support provider is not competent to decide on the suspension of enforcement proceedings pursuant to Section 257 of the German Fiscal Code (AO), as it does not itself carry out the enforcement. Its competence does not derive from its responsibility to the enforcement authority (Section 250 Paragraph 1 Sentence 2 AO), since this only concerns the internal relationship between the requesting and the requested authority. Nor does its competence derive from the failure to forward an application by the benefit recipient for a suspension of enforcement, as Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book I (SGB I) is not a provision establishing independent competence.
Source: socialcourtsability.de
2.3 – SG Schleswig, Judgment of June 5, 2019 – S 9 AS 146/17, S 9 AS 276/17, S 1 AS 241/16 and S 9 AS 56/17
The concept of the district of North Frisia, which has been in effect since July 1, 2015, also fails to withstand a thorough judicial review by the Social Court in Schleswig, an article by attorney Dirk Audörsch
1. For the year 2017, this means that instead of the maximum accommodation costs of €346.00 (gross/cold) granted for a single-person household in Husum, up to €429.00 (gross/cold), i.e. up to €83.00 more, would actually have had to be covered.
2. For a two-person household in Husum, this means that instead of the accommodation costs of only €394.00 (gross/cold) granted, up to €520.30 (gross/cold), i.e. up to €126.30 more, would have had to be covered.
3. For a single-person household in Bredstedt (North Region), this means that instead of the maximum accommodation costs of €343.00 (gross/cold) granted, up to €386.10 (gross/cold), i.e. up to €43.10 more, would have had to be covered.
Source: westkuestenanwalt.com
3. Decisions of the State Social Courts on Employment Promotion Law
3.1 – Saxon State Social Court, decision of 17 September 2019 – L 3 AL 19/19 B ER
Principle (Juris)
1. The obligation of an intervening agency within the framework of preliminary legal protection (here regarding benefits as subsistence assistance pursuant to Section 2 of the Asylum Seekers' Benefits Act) can only be subsidiary to an obligation of the respondent (here regarding vocational training assistance). It is therefore only possible if the application against the respondent, which must be examined first, is unsuccessful.
2. Regarding the balancing of interests in preliminary legal protection proceedings, if, on the one hand, the interpretation of Section 132 of the German Social Code, Book III (SGB III), as well as the interpretation of Section 22 of the German Social Code, Book XII (SGB XII) and Sections 2 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) is disputed and difficult and unclear precisely because of the constitutional questions, and, on the other hand, the specific circumstances to be considered in the applicant's case, which may speak in favor of a prospect of remaining or of a hardship case, cannot be conclusively clarified in preliminary legal protection proceedings.
Source: socialcourtsability.de
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – North Rhine-Westphalia State Social Court, decision of 14 October 2019 – L 9 SO 255/19 B ER – legally binding
Eligible persons under Chapter Four of the German Social Code, Book XII (SGB XII), Bulgarian applicants, age limit of Section 41 Paragraph 2 SGB XII, right to freedom of movement despite reaching the age limit according to Section 7a Sentence 2 SGB II or Section 41 Paragraph 2 Sentence 3 SGB XII
Guiding principle (Editor)
1. The applicant can invoke her substantive right of freedom of movement as an employee even after reaching the age limit, because
2. Section 4 of the Freedom of Movement Act/EU does not provide for an age limit that would categorically classify an EU citizen as "not gainfully employed," nor can such a limit be interpreted into Section 2.2.1.3 of the General Administrative Regulations on the Freedom of Movement Act/EU. The fact that reaching retirement age is generally (but not always!) linked to the end of employment and the beginning of a period of economic inactivity does not, according to the legislative intent, automatically lead to the loss of employee status.
Source: socialcourtsability.de
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – Hildesheim Social Court – Case No.: S 42 AY 77/19 of 02.10.2019
Legal provisions: Section 2 Asylum Seekers' Benefits Act, Section 82 Paragraph 3 Social Code XII – Keywords: Asylum Seekers' Benefits Act, income allowance, decree of the Lower Saxony Ministry of the Interior dated March 4, 2019 (allowances as provided for in Social Code XII for income assessment are not taken into account)
Guiding principle (Editor)
1. The regulation of the federal legislature in § 82 paragraph 3 SGB XII cannot be waived either by a decree of a state interior ministry or by any state regulation whatsoever, because this is “not required”.
2. Furthermore, the non-application of Section 82 Paragraph 3 of the German Social Code, Book XII (SGB XII) to those entitled to analogous benefits who are in training would constitute unequal treatment compared to those entitled to benefits under Section 19 Paragraph 1 or 2 of the SGB XII, who also have a hardship case under Section 22 Paragraph 1 of the SGB XII and are completing vocational training.
Source: www.anwaltskanzlei-adam.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Replacement of the integration agreement by administrative act, a contribution by lawyer Franz-Emanuel Bosin
According to § 15 para. 2 SGB II, an integration agreement should be concluded with every employable person entitled to benefits.
The law clearly stipulates that the authority must at least attempt to reach a mutually agreeable agreement with the recipient of the aid.
However, I have been told several times that the authorities do not even attempt this, but instead demand that pre-prepared integration agreements be signed or refuse to allow the recipient of assistance to take the printed integration agreement home to review it before signing it.
Such actions by the authorities are inadmissible and also unlawful.
More information: www.anwalt.de
6.2 – Federal government prevents early language acquisition
Access to integration courses will become even more difficult.
More information: www.ggua.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
