1. Decisions of the Federal Social Court on basic security according to (SGB II), on social assistance (SGB XII) and on child allowances
1.1 – BSG, judgment of October 30, 2019 – B 14 AS 2/19 R
Recognition of a double rent requires that the expenses are unavoidable and specifically appropriate.
Guidance sentence (editor)
The assumption of double rent does not represent housing costs, but rather accommodation costs in accordance with Section 22 Paragraph 1 SGBII.
Source: www.bsg.bund.de
1.2 – BSG, judgment of July 11, 2019 (B 14 AS 44/18 R):
Principle Dr.
Manfred Hammel 1. The calculation of a monthly average income in the final decision on entitlement to benefits occurs regardless of the reason for the provisional status and covers all types of income and months of the approval period.
2. With the mandatory requirement to form a monthly average income, Section 41a Paragraph 4 SGB II refers to all types of income in the approval period, takes into account all months of this phase and does not presuppose that the (fluctuating) receipt of income is the reason for this was provisional.
3. The meaning and purpose of Section 41a Paragraph 4 SGB II represents an administrative simplification in the final decision on the monthly entitlement to benefits through the fundamentally mandatory requirement to form a monthly average income.
4. This is a special legal exception to Sections 11 ff. SGB II, which regulates the crediting of income.
5. Section 41a (4) SGB II dissolves the connection with a specific type of income and extends the formation of an average income to all cases covered by this provision of the final decision on the monthly entitlement to benefits after a preliminary decision.
6. In principle, the preliminary decision does not establish any protection of legitimate expectations. With the final decision on the granting of benefits in accordance with SGB II, this assistance will be re-regulated overall. Only provisionally approved benefits form an aliud to final assistance and do not have a corresponding binding effect.
7. The job center must first calculate a monthly average income by adding up the income for each type of income, and then make a monthly adjustment for the deductible amounts in accordance with Section 11b SGB II. For this adjustment of the monthly average income, a distinction must be made between different types of income insofar as different deduction amounts are applied.
1.3 – Federal Social Court, judgment of July 18, 2019 (B 8 SO 2/18 R):
Principle Dr.
Manfred Hammel 1. On the right of a school child suffering from early childhood autism in conjunction with a moderate level of intellectual disability as well as a significant disorder of social behavior to be accompanied at school by an assistant for more than 13 hours per week as an aid to appropriate school education within the meaning of §§ 53 ff. SGB XII in conjunction with Section 12 Integration Assistance Ordinance. Only this constant (comprehensive) support of the applicant enabled him to participate profitably in lessons.
2. This service does not affect the core area of educational activity.
3. In principle, all measures that are suitable and necessary to eliminate or mitigate the consequences of disability in connection with the provision of an appropriate school education come into consideration here.
4. School companions only provide assistance services during lessons, even if they look after and support the disabled student outside of the classroom during individual work phases. This is an important safeguard for the applicant to take part in lessons.
5. The actual pedagogical design of the task to be completed on the instructions of the school always remains with the teacher.
1.4 – BSG, judgment of October 30, 2019 – B 4 KG 1/19 R
Guidance sentence (editor)
In contrast to the child allowance paid in arrears, there is no exception to be made from consideration in the month of accrual for housing benefit paid in arrears.
further: www.bsg.bund.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, judgment of July 23, 2019 - L 10 AS 17/19 - pending at the BSG under the reference number B 14 AS 48/19 R
Guidance sentence (editor)
Distribution of an operating cost credit -. The distribution over six months also applies if the one-sixth amount temporarily eliminates the need for help, for a maximum of six months.
Source: socialcourtsability.de
2.2 – Hessian State Social Court, decision v. October 16, 2019 – L 7 AS 343/19 B ER
Guidance sentence (editor)
The purpose of the law and the justification for the law suggest that the exception formulated in Section 7 Paragraph 1 Sentence 4 SGB II from the exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II does not only require a one-time registration with the responsible registration authority ( § 7 Para. 1 Sentence 5 SGB II), but rather to be continuously registered in the federal territory for a period of at least five years (LSG Schleswig-Holstein, May 4, 2018 - L 6 AS 59/18 B ER, aA. LSG Hamburg, resolution of June 20, 2019, L 4 AS 34/19 B ER).
Source: socialcourtsability.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – SG Kiel, decision by. October 21, 2019 – S 40 AS 260/19 ER
Money from the job center to buy a computer – but how much? A contribution from RA Helge Hildebrandt
In May 2019 I reported in this blog that the Schleswig-Holstein State Social Court (SH LSG) granted a student benefits in accordance with Section 21 Paragraph 6 SGB II for the purchase in its decision of January 11, 2019, L 6 AS 238/18 B ER an internet-capable laptop including software and printer in the amount of €600.00.
In its (legal) decision of October 21, 2019 on file number S 40 AS 260/19 ER, the 40th Chamber at the SG Kiel has now determined the claim of the 20-year-old plaintiff there to be €350.00 after “carrying out her own internet research”.
Those affected who want to enforce a claim for the costs of an internet-capable computer in court are advised to either leave the amount at the discretion of the court or to claim acquisition costs of over €750 (e.g. €751) in order to be able to do so to be able to take the appeal or complaint to the SH LSG (Section 172 Paragraph 3 No. 1 SGG in conjunction with Section 144 Paragraph 1 Sentence 1 No. 1 SGG) - where there will probably still be €600.00.
further lawyer Helge Hildebrandt
3.2 – Kiel Social Court, decision of October 21, 2019 (S 40 AS 260/19.ER):
Principle Dr.
Manfred Hammel 1. On the obligation of the job center to approve EUR 350 as additional requirements in accordance with Section 21 Paragraph 6 SGB II to purchase a laptop necessary for participation in school lessons.
2. Such costs are not to be covered from the benefits for school supplies in accordance with Section 28 Paragraph 3 SGB II, since the legislature did not take into account the costs for higher-quality electronic devices when compiling these amounts.
3. The laptop only has to be paid for once. However, this device fulfills an ongoing need, namely that of being able to attend a vocational high school appropriately, participate in classes on an equal basis and do homework without being disadvantaged compared to other students.
3.3 – SG Dresden, decision by. October 28, 2019 – S 29 AS 3154/19 ER
Iraqi woman suffering from cancer receives benefits to secure her livelihood
The SG Dresden has provisionally obliged the Jobcenter Dresden to pay an Iraqi woman suffering from cancer benefits to secure her livelihood in accordance with SGB II until her current residence permit expires in January 2020.
Foreigners whose right of residence arises solely for the purpose of looking for work are entitled to benefits to secure their livelihood in accordance with SGB II if they have had their habitual residence in the federal territory for at least five years. You are able to work within the meaning of SGB II as long as your residence permit allows you to take up employment. If there is a dispute between the job center and the social welfare office as to whether an applicant is able to work, the applicant's ability to work will be faked until the responsible employment agency makes a decision.
continue on Juris
3.4 – SG Hannover, decision by. October 30, 2019 – S 46 AS 626/19 ER
Guidance sentence (editor)
The job center must make it clear in the integration administrative act that it has to take discretionary aspects into account with regard to the period of validity “until further notice” (Lower Saxony-Bremen, judgment of August 16, 2019 - L 15 AS 274/18 - Guidance on this only for Tacheles )
Guidance (RA Heemann law firm)
In the decision of October 30, 2019 - S 46 AS 626/19 ER - the SG Hannover follows the case law of the Federal Social Court and the State Social Court of Lower Saxony Bremen, according to which it is not already legally objectionable that integration administrative acts have a period of validity " “until further notice”, but the regulation of such a period of validity must be based on sufficient discretionary considerations.
4. Decisions of the state social courts and social courts on asylum law
4.1 – Landshut Social Court, decision v. October 24, 2019 – S 11 AY 64/19 ER
Orientation sentence (editor)
At least in the respondent's interpretation of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, the regulation appears unconstitutional.
Source: socialcourtsability.de
4.2 – Dresden Social Court, decision of June 7, 2019 (S 3 AY 29719 ER):
Principle Dr.
Manfred Hammel 1. A possible failure to provide benefits under the AsylbLG to parents seeking benefits, e.g. B. an abusive legal influence on the length of stay in accordance with Section 2 Paragraph 1 AsylbLG, cannot be attributed to their minor children in the context of the granting of benefits in accordance with Section 2 AsylbLG, since this regulation contains a highly personal element.
2. Children can independently derive a claim in accordance with Section 2 Paragraph 1 AsylbLG, without taking the parents' situation into account.
3. Benefit cuts in accordance with Section 1a Paragraphs 3 and 4 AsylbLG fail if the family is not legally obliged to leave the country. Due to the youngest daughter's ongoing asylum procedure, this child cannot be expelled for legal reasons in accordance with Section 53 Paragraph 4 Sentence 1 of the Residence Act until her initial procedure has been incontestably concluded.
4. There is an obstacle to this family's departure from the federal territory that is not the responsibility of the family members.
5. According to Article 6 of the Basic Law, it is unreasonable for the youngest daughter to be separated from her parents and siblings.
6. Even if the asylum application has been rejected, this does not mean that the applicants are subjectively in no danger and, at least for this reason, there is no desire to return. In appropriate circumstances, the receipt of benefits does not represent the final reason for entry within the meaning of Section 1a AsylbLG.
5. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
5.1 – SOCIAL LAW JUSTAMENT 10/2019 (October 2019)
The topic of the October issue is the completely disparate jurisprudence of the social justice system on the SGB II/SGB XII exclusion of newly immigrated EU citizens. The essay has become a little more detailed and legal than originally intended.
further: Sozialrecht-justament.de
5.2 – OVG Saxony, decision of October 2, 2019 (3 A 637/19):
Principle Dr.
Manfred Hammel The income of the children, some of whom live with his divorced wife, who are also attributable to the applicant's housing benefit budget and are attributable to the receipt of benefits according to SGB II, must also be stated in the housing benefit application.
The applicant is responsible for this, even if he does not know the exact amount of these transfer payments. The exact extent of these amounts (especially for accommodation costs) can be determined by the housing benefit authority.
In accordance with Section 14 Paragraph 2 No. 30 WoGG, these transfer payments are to be used when calculating the annual income of the household member to be taken into account.
According to Section 45 Paragraph 2 Sentence 3 No. 2 SGB X, this applicant cannot rely on protection of legitimate expectations. There was correspondingly gross negligence because he was aware that his children had been taken into account as a community of need when assessing benefits under SGB II to his divorced wife.
Here it should at least have been necessary for him to make sure, before providing the relevant information in the housing benefit application, whether the social benefits granted to his children should be stated or not.
Any legal error made by the applicant here is irrelevant. He had to at least state the fact that the job center provided benefits to his children as such.
5.3 – Working aid: Obligations to cooperate in clarifying identities/procuring passports for people with tolerated status
further: www.fluechtlingsrat-thr.de
5.4 – Magazine quer issue 24 is online, October 31, 2019
further: www.also-zentrum.de
5.5 - No fundamentally higher accommodation requirement for the parent with access rights, a contribution from Attorney Helge Hildebrandt
In the regulatory area of SGB II (Hartz IV), there is always a dispute about whether parents who have their children living with them temporarily are therefore entitled to a larger apartment have.
In the case decided by the Federal Social Court, a beneficiary lived alone in a 70 square meter apartment. After a request to reduce costs, the defendant job center only granted the Hartz IV recipient the upper rent limit for a 50 square meter apartment. The beneficiary objected to this on the grounds that he had his 4-year-old daughter living with him every other weekend, and she needed to have her own living area in his apartment so that she didn't feel like she was just a visitor.
The Hartz IV recipient was unsuccessful in his request in all instances. When determining the specific accommodation needs, despite the access rights of parents and children protected by Article 6 Paragraph 1 and 2 of the Basic Law, higher accommodation costs or space requirements of the parent with access rights cannot generally be recognized.
further: Sozialberatung-kiel.de
5.6 – How much rent does the job center cover? The determination of the abstractly appropriate need for accommodation in SGB II RiSG Simon Löcken, e.g. Currently Wis. With. at BSG
further: www.juris.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
