1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, Judgment of July 11, 2019 (B 14 AS 51/17 R):
Principle by Dr. Manfred Hammel
: A valid application for unemployment benefit II (§§ 19 ff. SGB II) is not precluded if the applicant has forwarded a corresponding request to the job center by email.
According to Section 37 of the German Social Code, Book II (SGB II), applications for basic income support for job seekers are generally not bound to any specific form, because the principle of informality of administrative procedures (Section 9 of the German Social Code, Book X (SGB X)) is fully valid here as well.
The application requirement of Section 37 SGB II does not require either the written form pursuant to Section 126 Paragraph 1 BGB or personal notification to the authority.
The same applies if the job center has opened access for communication via email (§ 36a para. 1 SGB I), which does not exclude the submission of benefit applications.
According to § 37 para. 1 SGB II, an application initially has a constitutive effect on an entitlement to benefits.
Furthermore, this application also has procedural significance because it initiates the administrative procedure. From this point on, the SGB II agency is obligated to examine and decide on the existence of an entitlement to benefits.
The date of application marks the decisive turning point. This has crucial implications regarding benefit entitlements.
Of striking importance for the entitlement to benefits in the application month is solely the aspect that a corresponding application has actually entered the power or sphere of influence of a job center in the respective month.
A benefit application received by the job center via email in the evening hours of January 30th has retroactive effect to the first of that month in accordance with Section 37 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, decision of 24 October 2019 – L 6 AS 1304/19 B ER and L 6 AS 1305/19 B – legally binding
Guiding principle (Editor):
The Romanian applicant is entitled to ALG II (unemployment benefit II) because the applicant has a right of residence other than that for job seeking, which precludes the application of the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II), and thus has an entitlement to benefits under Section 7 Paragraph 1 Sentence 1 of the SGB II. The applicant is to be considered an employee within the meaning of Section 2 Paragraph 2 Number 1 of the Freedom of Movement Act/EU.
Source: socialcourtsability.de
2.2 – Lower Saxony-Bremen State Social Court, decision of 29 October 2019 – L 7 AS 15/17 B
RVG
– No fees for litigation proceedings!!! –
1. Even out-of-court settlements can trigger the creation of a settlement fee according to No. 1006 para. 1 in conjunction with No. 1005 in conjunction with No. 1000 para. 1 sentence 1 of the RVG fee schedule.
2. The fact that a dispute outside the subject matter of the court proceedings has been included in the settlement does not preclude the accrual of the settlement fee pursuant to No. 1006 para. 1 in conjunction with No. 1005 in conjunction with No. 1000 para. 1 sentence 1 of the RVG (German Lawyers' Fees Act).
3. It is contrary to good faith according to the general legal principle of § 242 of the German Civil Code (BGB) if the lawyer demands remuneration (here: the settlement fee) from the public treasury on the basis of the granting of legal aid under his appointment, even though he has made the public treasury's claim for reimbursement impossible from the outset without sufficient objective reason pursuant to § 59 para. 1 sentence 1, para. 2 of the German Lawyers' Fees Act (RVG) in conjunction with § 126 para. 1 of the German Code of Civil Procedure (ZPO) (confirmation of the Senate's decision of 3 May 2019 – L 7 AS 12/17 B).
Source: www.rechtsprachung.niedersachsen.de
2.3 – Berlin-Brandenburg State Social Court, Judgment of 30 October 2019 – L 37 SF 38/19 EK AS
Principle (Juris)
1. The procedure for obtaining a basic decision on costs pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Courts Act (SGG) is to be regarded, for the purposes of compensation law, as a separate court proceeding within the meaning of Section 198 Paragraph 6 No. 1 of the Courts Constitution Act (GVG) (continuation of the ruling of the Higher Social Court of Berlin-Brandenburg, judgment of November 24, 2016 – L 37 SF 247/14 EK – juris).
2. For proceedings to obtain a basic decision on costs pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Courts Act (SGG), the courts are generally entitled to a preparation and deliberation period of three calendar months (overruling the previous case law in the Higher Social Court of Berlin-Brandenburg, judgment of November 24, 2016 – L 37 SF 247/14 EK – juris).
3. Whether, in such proceedings, redress by way of a finding of unreasonable length of proceedings is generally sufficient can remain undecided. In any case, this is to be assumed in the case of further special circumstances – here, the identity of the applicant and the authorized representative in the underlying preliminary injunction proceedings.
4. Insofar as the costs incurred for the pre-litigation assertion of the claim for compensation constitute a pecuniary loss (following BVerwG, judgment of 27.02.2014 – 5 C 1/13 D – juris), compensation is only possible to the necessary extent – dependent on the success of the case.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Karlsruhe, decision of 07.11.2019 – S 10 AS 1874/19 ER
Principle (Juris):
1. If the responsible basic income support provider suspects that the benefit recipient is transferring their assets in order to avoid exceeding the applicable asset allowances, the basic income support provider cannot simply assume that the benefit recipient is no longer in need of assistance. Even if an asset transfer has actually taken place, it must still be examined whether the assets are still usable by the benefit recipient within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II).
2. An entitlement to benefits under the German Social Code, Book II (SGB II) can also exist if the need for assistance was caused by culpable conduct. However, this culpable conduct can have an indirect effect, such as a reduction of the benefit entitlement pursuant to Section 31 Paragraph 2 No. 1 SGB II or the assertion of claims for compensation pursuant to Section 34 SGB II.
3. If the applicant has assets just below the relevant exemption limit, grounds for granting subsistence benefits under the German Social Code, Book II (SGB II) are credibly demonstrated if the applicant cannot immediately liquidate these assets.
Source: socialcourtsability.de
4. Decisions of the State Social Courts and Social Courts on Asylum Law
4.1 – Lower Saxony-Bremen State Social Court, decision of 23 October 2019 – L 8 AY 39/19 B ER
Responsibility of the agency pursuant to Section 10a AsylbLG in the case of a residence requirement pursuant to Section 60 AsylG that comes into force again due to renewed need
Principle (Juris)
1. For asylum seekers, Section 10a Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) generally contains a uniform rule of jurisdiction, which is based on the decision in the state-level distribution procedure (Section 50 of the Asylum Act (AsylG)). This also applies to a residence requirement that comes back into force upon the (renewed) commencement of need pursuant to Section 60 Paragraph 1 Sentence 1 of the Asylum Act (AsylG), if the foreigner no longer has his habitual residence in the area assigned to him.
2. Section 11 paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) contains an obligation for the authority of the actual place of residence to provide benefits in cases of contravention of a spatial restriction under immigration law (continuation of LSG Celle-Bremen of 20.02.2014 – L 8 AY 98/13 B ER – juris RdNr 26).
3. The obligation of the authority of the actual place of residence to provide benefits includes all benefits for the actual coverage of needs (continuation of LSG Celle-Bremen of 20.02.2014 – L 8 AY 98/13 B ER – juris para. 27).
Source: socialcourtsability.de
4.2 – Lower Saxony-Bremen State Social Court – Case No.: L 8 AY 12/19 B ER of 12.09.2019
Entry into Germany itself is not an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
Principle (Juris)
1. Different identity details provided in other EU member states or a third country participating in the distribution mechanism (here Italy and Norway) before the stay in Germany may not, in individual cases, constitute an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
2. Entry into Germany itself is not an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), even if international protection has previously been granted by another EU Member State or a third country participating in the distribution mechanism.
3. When determining the value of the subject matter of the appeal within the meaning of Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), insofar as it concerns the granting of ongoing subsistence benefits, a benefit period of (a maximum of) twelve months must generally be assumed, at least in preliminary legal protection proceedings (continuation of the decisions of the Higher Social Court of Celle-Bremen of 12 December 2016 – L 8 AY 15/16 B ER = FEVS 68, 561 = juris para. 8 and the Higher Social Court of Celle-Bremen of 17 August 2017 – L 8 AY 17/17 B ER – juris para. 4).
4. The claim for an order to receive so-called analogous benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) on a provisional basis instead of basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) is subject to a special urgency (ground for an order) at least until the Third Act Amending the Asylum Seekers' Benefits Act (BGBl. I 2019, 1290) enters into force on September 1, 2019.
Source: socialcourtsability.de
4.3 – Lower Saxony-Bremen State Social Court, Judgment of 18 July 2019 – L 8 AY 56/16
Transfer of a payment claim against the account-holding bank pursuant to Section 93 of the German Social Code, Book XII (SGB XII)
Principle (Juris)
1. If a substantive review is opened, the administration and courts in proceedings in favor of the applicant pursuant to Section 44 of the German Social Code, Book X (SGB X) must examine, even without new submissions from the applicant, whether the law was incorrectly applied when the binding administrative act was issued (following the Federal Social Court's decision of September 5, 2006 – B 2 U 24/05 R – juris).
2. On the sufficient specificity of a transfer notification pursuant to Section 93 of the German Social Code, Book XII (SGB XII).
3. A transfer of a claim pursuant to Section 93 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) is excluded if the claimant can readily realize the claim, i.e., if it is available to him as a so-called readily available means to cover his current needs.
Source: socialcourtsability.de
4.4 – Social Court Hildesheim – Case No.: S 42 AY 20/19 of 01.11.2019
Legal norms: Section 1a Paragraph 3 Asylum Seekers' Benefits Act (AsylbLG), Section 2 AsylbLG, Section 86b Paragraph 2 Sentence 2 Social Court Act (SGG) – Keywords: Unlawful reduction of benefits, breach of duty, analogous benefits, continuing administrative act
Guidance Note (Editor)
: “However, the application of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) fails in the present case due to the fact that the plaintiff's conduct during the period in dispute was not the sole cause of the non-enforceability of deportation measures, meaning that he is not responsible for this “himself” within the meaning of Sentence 1 of the provision. For Section 1a Paragraph 3 Sentence 1 of the AsylbLG, a causal link must exist between the foreigner's reprehensible conduct and the non-enforcement of deportation measures (see the Federal Social Court's judgment of May 12, 2017 – B 7 AY 1/16 R –).”
This is not the case here because the Lebanese embassy, and thus the Lebanese authorities, require a German residence permit or official confirmation of its issuance as a prerequisite for issuing a national passport. However, the defendant did not issue a residence permit (due to a lack of legal basis), so that, for this reason alone and regardless of the cooperation of the tolerated plaintiff, the enforcement of measures to terminate his residence had no prospect of success
Source: www.anwaltskanzlei-adam.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Administrative Court Meiningen, judgment of August 20, 2019 (2 K 449/17 Me):
Guiding principle Dr. Manfred Hammel:
The exclusion from housing benefit pursuant to Section 7 Paragraph 1 Sentence 1 No. 5 WoGG only applies to persons who actually receive benefits under Sections 41 et seq. SGB XII, but not to applicants who apply for housing benefit even though they would also meet the requirements for receiving subsistence assistance.
It is not to be disapproved of if an eligible person chooses the more favorable of two funding options offered by the state.
This applies particularly if the applicant would first have to create the conditions for receiving benefits under the German Social Code, Book XII (SGB XII), by realizing existing assets (§ 90 para. 1 SGB XII).
A spouse of a person fully accommodated in a residential care facility (§§ 61 ff. SGB XII), who remains living in the formerly shared home and applies for housing benefit to supplement their remaining pension income, can claim a deduction from their pension income of up to EUR 6,000 per year in accordance with § 18 sentence 1 no. 3 WoGG.
Although this accommodation of the spouse in need of care does not result in a separation in the family law sense (§ 1567 para. 1 BGB), even though the absence of a further domestic community between these two people must be affirmed here.
Section 18 sentence 1 no. 3 of the Housing Benefit Act (WoGG) is not intended to take into account mutual care efforts, but rather actual outflows of funds to the spouse in need of care, which do not actually remain with the person entitled to housing benefit.
It is unacceptable to discriminate against partners in an intact marriage who live in separate households compared to divorced and permanently separated couples.
There are legitimate social welfare motives for spouses to have separate living spaces, which preclude any justification for unequal treatment of spouses based on the argument of shared living space.
The need for care of one spouse, necessitating placement in a care home, constitutes a separation resulting from external influences over which the spouses have no control.
Therefore, taking into account the purpose of housing benefit as a benefit to promote social housing and the protection of marriage under Article 6 Paragraph 1 of the Basic Law, the sole determining factor here is whether the spouses are permanently required to maintain two separate households. A permanently separated spouse does not constitute a household member under Section 5 Paragraph 1 Sentence 2 of the Housing Benefit Act, because permanent placement in a nursing home at the facility's location effectively establishes a new center of life.
5.2 – 80,000 children were affected by Hartz IV sanctions at the end of 2018, a contribution by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
5.3 – If the relatives cannot pay the funeral costs
Even if a relative is unable to fully pay the funeral costs in the month they are due, given their income and assets, bearing such funeral costs may still be considered reasonable.
Federal Social Court, Judgment of April 4, 2019 – B 8 SO 10/18 R
more on the right side
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
