1. Decision of the Federal Constitutional Court on the German Social Code, Book II (SGB II)
1.1 – BVerfG v. November 5, 2019 – 1 BvL 7/16
Hartz IV sanctions are partly unconstitutional – Hartz IV sanctions must be eased immediately
The Federal Constitutional Court has ruled that benefit reductions to enforce cooperation obligations in the case of unemployment benefit II are possible up to a maximum of 30% of the standard benefit; the previously possible deductions of 60% or 100% for violations of the cooperation obligation are, however, incompatible with the Basic Law.
The Federal Constitutional Court ruled that sanctions, regardless of their amount, are incompatible with the Basic Law if the standard benefit is mandatorily reduced in cases of exceptional hardship following a breach of duty, and if a fixed duration of three months is prescribed for all benefit reductions. The Federal Constitutional Court declared the regulations applicable with corresponding modifications until new legislation is enacted.
Further information: www.bundesverfassungsgericht.de and www.sueddeutsche.de
Plain information:
Consequences of the Federal Constitutional Court's ruling on sanctions –
Information for those affected and advisory services
The new Tacheles YouTube channel on the Federal Constitutional Court ruling
Notes:
Unconstitutionality of sanctions – what happens next? And when do they become legally binding? An article by attorney Kay Füßlein
Attorney Volker Gerloff comments on the Federal Constitutional Court's sanction decision via Facebook
Interview with Roland Rosenow on Radio Dreyecksland, who fought against the sanctions for Tacheles at the Federal Constitutional Court.
Federal Constitutional Court on "Hartz IV" sanctions, an article by Herbert Masslau,
further information: www.herbertmasslau.de
Harald Thomé via Facebook: The internal preliminary directive of the BA and the BMAS on sanctions dated November 6, 2019
Federal Constitutional Court, judgment of 5 November 2019 (1 BvL 7/16):
Guidance by Dr. Manfred Hammel
1) The provisions in Section 31a Paragraph 1 Sentences 1, 2 and 3 of the German Social Code, Book II (SGB II) ("Legal consequences of breaches of duty") in conjunction with Section 31b of the SGB II ("Commencement and duration of the reduction") are compatible with the German Basic Law (GG) in the cases of Section 31 Paragraph 1 Sentence 1 of the SGB II ("Breaks of duty") insofar as the legislator imposes proportionate duties on employable benefit recipients in order to contribute to overcoming their own need in a reasonable manner within the meaning of Section 10 of the SGB II. The legislator's decision to enforce the obligations stipulated in Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), pursuant to Sections 31a and 31b SGB II, by means of a sanction—namely, the temporary reduction of benefits by the amount of the standard subsistence level applicable to the individual as defined in Section 20 SGB II—is generally within its discretionary powers. However, the specific legal design of these sanctions, based on current knowledge, does not meet the strict proportionality requirements applicable here.
2) The amount of a benefit reduction of 30% of the relevant standard benefit stipulated in Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), in the event of a breach of an obligation under Section 31 Paragraph 1 Sentence 1 of the SGB II, is, according to current knowledge, not in itself objectionable under constitutional law.
3) According to current knowledge, Section 31a Paragraph 1 Sentences 2 and 3 of the German Social Code, Book II (SGB II) are unconstitutional insofar as the reduction due to a first repeated and a further repeated breach of duty within one year exceeds 30% of the applicable standard benefit rate. This provision must therefore be declared incompatible with the German Basic Law (GG).
4) Section 31a paragraph 1 sentences 1, 2 and 3 of the German Social Code, Book II (SGB II) are unconstitutional and incompatible with the Basic Law (GG) insofar as they stipulate that the standard benefit must be reduced in the event of a breach of duty, even in cases of exceptional hardship, or that unemployment benefit II must be completely discontinued.
5) Section 31b paragraph 1 sentence 3 of the German Social Code, Book II (SGB II) is unconstitutional and incompatible with the Basic Law (GG) insofar as it prescribes a fixed duration of three months for all benefit reductions examined here.
6) If the legislature opts for the enforcement instrument of benefit reduction, thereby directly impacting the guarantee of a dignified existence, then the requirements for the proportionality of this measure are particularly stringent. When designing sanctions, other fundamental rights must be considered if their scope of protection is affected. The social welfare state principle of Article 20 Paragraph 1 of the Basic Law mandates the legislature to effectively guarantee a dignified minimum standard of living (Article 1 Paragraph 1 of the Basic Law). Both the physical and socio-cultural existence of a person are uniformly protected by Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law.
7) The cooperation obligations stipulated in Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) specify the legally enshrined principle of the requirement to cooperate as set out in Section 2 Paragraph 1 Sentence 1 of the SGB II, according to which employable benefit recipients (Section 7 Paragraph 1 Sentence 1 of the SGB II) must exhaust all possibilities to end or reduce their need for assistance. This serves precisely the legitimate aim of conserving public funds. There are no constitutional objections to this.
8) The amount of a benefit reduction of 30% of the standard benefit stipulated in Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), is currently sufficiently justifiable on the basis of plausible assumptions, provided that this sanction can also be waived in a case of exceptional hardship, and the reduction does not continue rigidly regardless of the cooperation of the benefit recipients concerned.
9) Whether and to what extent the benefit reductions listed in Section 31a of the German Social Code, Book II (SGB II) actually enable the affected benefit recipients to fulfill their obligations under Section 31, Paragraph 1, Sentence 1 of the SGB II is not supported by detailed data. However, negative effects of benefit reductions have been demonstrated. Particularly in the case of individuals with multiple barriers to employment and significant mental health problems, who are generally capable of cooperation but must be subject to benefit reductions pursuant to Section 31a, Paragraph 1 of the SGB II, it may be apparent in individual cases that the imposed reductions do not achieve the desired effects on enforcement and integration, not at that time, or no longer. The deliberately rigid regulation regarding the reduction period in Section 31b, Paragraph 1, Sentence 3 of the SGB II prevents the imposition of only specifically appropriate sanctions. This provision compels the SGB II agencies to always withdraw benefits intended to secure a dignified existence for a period of three months. This applies regardless of whether those affected subsequently fulfill their obligation or declare themselves seriously and sustainably willing to do so, such that it can be assumed that the declaration of intent to cooperate properly in the future can be considered genuinely credible. The rigid continuation of the sanction can remove the incentive to cooperate retroactively, because the sanction continues.
10) The requirement in Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), to automatically reduce the standard benefit rate without further examination in the event of a breach of duty, is unreasonable. This regulation currently fails to ensure that reductions can be waived in exceptional cases where they would cause extraordinary hardship, particularly if they appear intolerable in the overall context. The legislature must comprehensively consider identifiable exceptional circumstances. The legislature can ensure the reasonableness of the sanction in individual cases, but also through a hardship clause that allows the social welfare agency to refrain from imposing a sanction that is unreasonable in a particular case.
11) It is unreasonable that the sanction stipulated in Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), in conjunction with Section 31b Paragraph 1 Sentence 3 of the SGB II, always ends rigidly after three months, regardless of the cooperation it aims to achieve. This reduction period is only acceptable if the obligation to cooperate is persistently violated. This reduction in benefits is only acceptable if it ends as soon as the required cooperation is provided.
12) If cooperation is objectively no longer possible, but the applicant seriously and persistently declares their willingness to cooperate, the benefit must be reinstated within a reasonable time. The rigid three-month period is clearly too long for this purpose.
13) It is not apparent that the rigid three-month sanction period stipulated in Section 31b Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), could contribute to encouraging the affected benefit recipients to make their integration efforts. The sanction stipulated in Section 31a Paragraph 1 Sentence 1 of the SGB II is constitutionally acceptable only if its duration is linked to the cooperation of the affected individuals and thus to their own responsible action. There must be a legal provision allowing sanctions to be at least mitigated once their objective has been achieved.
14) The reduction of benefits by 60% of the relevant standard benefit rate stipulated in Section 31a Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), in the case of a first repeated violation of the duty to cooperate pursuant to Section 31 Paragraph 1 Sentence 1 SGB II, is incompatible with the German Basic Law (GG), primarily due to a lack of sound evidence regarding the suitability and necessity of a sanction of this severe amount. The provision in Section 31a Paragraph 1 Sentence 2 SGB II fails to meet the strict standards of proportionality, given the extraordinary hardship of this burden, because it is unreasonable. The resulting burden on the clientele extends far into the constitutionally guaranteed minimum subsistence level. The legislator's decision in Section 31a Paragraph 1 Sentence 2 SGB II to impose a sanction of a 60% reduction is therefore unacceptable. H. of the standard needs allowance cannot be based on sound evidence that the desired effects are actually achieved and negative effects are prevented.
15) In many cases, the sanction under Section 31a Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is also associated with negative effects such as homelessness, the risk of deskilling, increased debt, restricted nutrition, inadequate health care, social withdrawal and mental health problems.
16) The provision regarding possible supplementary benefits in Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) does not eliminate the doubts about the suitability of a benefit reduction amounting to 60% of the relevant standard benefit. These supplementary benefits are generally (exception: Section 31a Paragraph 3 Sentence 2 SGB II) at the discretion of the job center and are not quantified in terms of amount.
17) Here too, there is no provision that makes it possible to refrain from imposing further sanctions in exceptional cases of hardship.
18) The complete elimination of unemployment benefit II pursuant to Section 31a Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) is, based on current knowledge, incompatible with the constitutional standards that limit the legislator's discretion in shaping the means of enforcing obligations to cooperate in order to overcome one's own need for assistance.
19) Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) offers only limited protection against homelessness, as a loan merely alleviates the immediate hardship and postpones the burden. Furthermore, this situation leads to contribution arrears with the health insurance provider, resulting in substantial debt, precisely because Section 26 of the SGB II ("Subsidies for health and long-term care insurance contributions") does not apply. Therefore, serious concerns about the suitability of a sanction of this magnitude arise, particularly from the threat of homelessness and the risk of falling into a long-term debt trap. This undermines the foundation for returning to employment and securing one's livelihood. In this situation, people in need often completely break off contact with the job center and cover their needs through illegal employment and crime, meaning that this total sanction often proves counterproductive.
20) The fundamental right to a life of human dignity (Article 1, paragraph 1 of the Basic Law) is affected here because it is in no way proven that the elimination of subsistence-level benefits would be necessary to achieve the intended goal of vocational integration, and that a reduction of the standard benefit payments to a lesser extent, an extension of the reduction period, or even a partial conversion from cash to in-kind benefits would not be just as effective or even more effective, because the negative effects of the total sanction would be avoided.
21) This applies particularly to the current provision in Section 31b Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), according to which even the complete cessation of benefits under Section 31a Paragraph 1 Sentence 3 of the SGB II is to last a fixed three months, even if the cooperation required by the authorities is ultimately obtained. Here, too, the legislator must ensure that, despite the ordered cessation of unemployment benefit II, the opportunity remains to receive subsistence-level benefits if reasonable cooperation obligations are fulfilled, or if a genuine and sustained willingness to cooperate actually exists.
22) The situation is fundamentally different, however, if and as long as benefit recipients are able to secure their own dignified existence by accepting a reasonable job offer and earning an income. In the case of an unjustified refusal, a complete withdrawal of benefits may be justified.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, Judgment of 12.09.2019 – L 19 AS 1034/18
Guiding principle (Editor)
1. An employable person entitled to benefits cannot be referred to the use of an overdraft facility based on an existing current account agreement as a "readily available means" to cover their living expenses if they have previously used income received to pay off the debit on this account (left open in BSG judgment of 29.04.2015 – B 14 AS 10/14 R).
2. The possibility of using an overdraft facility to cover living expenses, combined with an increased interest burden, does not constitute unrestricted access to a one-off income and therefore does not represent "readily available" funds, even if, after receiving a one-off income and paying off the associated debt, the person concerned has not reduced the granted overdraft limit due to a current account agreement and has thus maintained the possibility of using the overdraft facility.
Source: socialcourtsability.de
2.2 – North Rhine-Westphalia State Social Court, Decision of 23 October 2017 – L 12 AS 1849/17 B ER – legally
Guiding principle (Editor):
1. Section 28 Paragraph 1 Sentence 1 No. 3 of the Residence Act stipulates that a foreign parent of a minor unmarried German citizen must be granted a residence permit for the purpose of exercising parental custody – even without securing their livelihood within the meaning of Section 5 Paragraph 1 Sentence 1 No. 1 of the Residence Act – if the German citizen has their habitual residence in Germany. Section 28 paragraph 1 sentence 1 number 3 of the Residence Act applies to minor EU citizens and their parents due to the principle of equal treatment established in Article 18 TFEU (Senate decision of 17 August 2017, L 12 AS 584/17 B ER; Higher Social Court of North Rhine-Westphalia decision of 30 November 2015, L 19 AS 1491/15 B ER; Higher Social Court of Berlin-Brandenburg decision of 29 June 2016, L 25 AS 1331/17 B ER; Dienelt in Bergmann/Dienelt, Ausländerrecht [Immigration Law], 11th edition 2016, § 11 FreizügG/EU [Freedom of Movement Act/EU] para. 38f; contra: Higher Social Court of North Rhine-Westphalia decision of 27 July 2017, L 21 AS 782/17 B ER; Higher Social Court of Berlin-Brandenburg decision of 22.05.2017, L 31 AS 1000/17 B). From this legal status, taking into account the principle of equal treatment of nationals established in Article 18 TFEU, they can derive a right of residence pursuant to Section 11(1) sentence 11 of the Freedom of Movement Act/EU in conjunction with Section 28(1) sentence 1 no. 3 of the Residence Act, if their children have a substantive right of residence.
2. This is the case here.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Kiel, Judgment of 25 October 2019, S 38 AS 348/18
€379 from the job center for the purchase of a notebook, an article by lawyer Helge Hildebrandt
The Kiel Social Court has once again awarded a student benefits for the purchase of a computer under Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), this time in the amount of €379 claimed. In its ruling, the 38th Chamber addresses in particular the question of whether the need must be for an ongoing, rather than a one-off, expense and concludes that, according to the Federal Social Court's (BSG) case law on the reimbursement of schoolbook costs (BSG, judgment of May 8, 2019, B 14 AS 13/18 R), this is apparently not the case, and that the need not covered by the standard benefit rate is sufficient.
Sources: sozialberatung-kiel.de and sozialberatungkiel.files.wordpress.com
Note:
Social Court Kiel, judgment of October 25, 2019 (S 38 AS 348/18):
Guiding principle Dr. Manfred Hammel
1. The hardship provision of § 21 para. 6 SGB II can be applied to the acquisition of technical equipment that is indispensable for teaching or for participation in teaching and for ensuring the educational purposes, such as a notebook.
2. A regular need for use cannot be denied here.
3. The fact that such a device only needs to be purchased once or twice during the school year does not lead to a different assessment here, since a need and an entitlement under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) do not necessarily have to exist in every benefit period.
3.2 – SG Mainz, decision of 07.10.2019 – S 14 AS 582/19 ER
Additional needs allowance for "PC with software" for students receiving benefits under the German Social Code, Book II (SGB II) when attending vocational school I for information processing and media design
Principle (Juris):
1. Students receiving benefits under the German Social Code, Book II (SGB II), attending vocational school level I for information processing and media design have an additional need for a PC and the necessary software due to the extensive computer-related curriculum and associated homework, provided their family does not already possess such equipment. The job center must provide a grant, not a loan. It may not refer the student to borrowing a PC from relatives.
2. The claim is directed at a used, not a new, PC.
Source: www.landesrecht.rlp.de
3.3 – Social Court Dresden, decision of 28 October 2019 – S 29 AS 3154/19 ER
Iraqi woman with cancer receives benefits to secure her livelihood
The Social Court of Dresden has provisionally ordered the Jobcenter Dresden to pay benefits to secure the livelihood of an Iraqi woman with cancer until her current residence permit expires in January 2020, in accordance with the German Social Code, Book II (SGB II).
Foreign nationals whose right of residence is solely for the purpose of seeking employment are entitled to benefits to secure their livelihood under the German Social Code, Book II (SGB II), if they have had their habitual residence in Germany for at least five years. They are considered capable of working within the meaning of the SGB II as long as their residence permit allows them to take up employment. If a dispute exists between the job center and the social welfare office regarding an applicant's capacity to work, the applicant's capacity to work is presumed until a decision is reached by the responsible employment agency.
Full text now available: sozialgerichtsbarkeit.de
3.4 – Social Court Hannover, Judgment of 30 September 2019 – S 43 AS 3574/17
The relevant point in time for assessing whether an income is subject to a tax with an effective repayment claim is the last day of the month in which the income was received
Contrary to the Federal Social Court's (BSG) ruling of August 23, 2011, B 14 AS 165/10 R, the relevant point in time for the existence of a repayment obligation for income (here: salary overpayments) is not the time of receipt, but the last day of the month of receipt, among other reasons because there is no apparent objective reason to deviate from the monthly principle which applies without exception when assessing income, and the assessment of whether income exists would otherwise depend on chance.
Source: www.rechtsprachung.niedersachsen.de
3.5 – SG Leipzig, judgment of 01.11.2019, S 17 AS 2828/18
Guidance (Law Firm Heemann):
The sending of a document by fax is substantiated by the submission of a fax log. If the authority refuses to provide information as to whether the transmission is recorded in the memory of the receiving device according to the fax log, or whether and in what manner a receipt log was kept, which it is requested to produce, then, according to the principles of burden of proof, this is to its detriment, as it must be assumed that the claim of receipt is true (cf. Federal Court of Justice, Judgment of February 19, 2014, IV ZR 163/13, para. 30).
4. Decisions of the social courts on social law (SGB XII)
4.1 – SG Lüneburg, decision of 16.10.2019 – S 22 SO 112/18
Guiding principle (Editor):
1. The allowance for company pensions pursuant to Section 82 Paragraph 4 of the German Social Code, Book XII (SGB XII) is not taken into account within the framework of long-term care assistance.
2. There is no evidence to suggest that the regulation in Section 82 Paragraph 4 of the German Social Code, Book XII (SGB XII) is unconstitutional with regard to impermissible unequal treatment.
Source: www.rechtsprachung.niedersachsen.de
4.2 – Freiburg Social Court, Judgment of 08.10.2018 – S 7 SO 552/18 – legally binding
People in the entry or vocational training area of a workshop for disabled people
Guiding principle (Editor):
Even in the case of persons in the entry or vocational training area of a workshop for disabled people, a full permanent incapacity for work can be assumed (SG Augsburg, judgment of 16.02.2018 – S 8 SO 143/17).
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Social Court Landshut, decision of October 24, 2019 (S 11 AS 64/19 ER):
Guiding principle by Dr. Manfred Hammel
on the unconstitutionality of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG 2019.
1. Reducing standard benefit rates to 90% compared to single persons presupposes cohabitation, partnership and shared finances.
2. It appears impossible that unrelated persons in communal accommodation within the meaning of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG in conjunction with Section 53 Paragraph 1 AsylG regularly and without consideration of the individual case fulfill these three criteria.
3. It must be taken into account that residents of such accommodation may have individual needs that they wish and are permitted to cover independently with the funds provided. This can apply to needs for food and also for communication.
4. In individual cases, it is also unclear what benefits the other residents of the communal accommodation actually receive, e.g. reduced basic benefits according to § 3 AsylbLG, or restrictions on entitlements according to § 1a AsylbLG.
Note:
Social Court Landshut: Reductions in Asylum Seekers' Benefits for single persons are unconstitutional
In an interim ruling dated October 24, 2019, the Social Court of Landshut determined that the classification of adult single recipients of benefits under the Asylum Seekers' Benefits Act (AsylbLG) into standard benefit level 2, as is already the case for spouses/life partners, and the resulting de facto reduction of benefits, is unconstitutional.
Further information: www.fluechtlingsrat-lsa.de
Note:
The decision of the Social Court of Landshut dated October 24, 2019 – S 11 AY 64/19 ER – was published in the Tacheles case law ticker, week 45/2019.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Determination of average income when finalizing provisional decisions under the German Social Code, Book II (SGB II), a contribution by Herbert Masslau
More information: www.herbertmasslau.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
