Tacheles Legal Case Law Ticker Week 50/2019

1. Decisions of the state social courts on basic income support for job seekers (SGB II)

1.1 – Sanction decision of the 29th Senate of the Berlin-Brandenburg Higher Social Court of 26 November 2019 – Case No.: L 29 AS 2004/19 B ER

The case involved a person under 25 (with children) and involved a total sanction. The job center had partially acknowledged the claim and reduced the sanction to 30%. While the partial acknowledgment was accepted, the appeal was upheld in its entirety. The Higher Social Court (LSG) ordered the suspension of the sanction, as it deemed even a 30% reduction unlawful if it was imposed rigidly for three months, regardless of the individual's willingness to cooperate further.

Source: Harald Thome

1.2 – Bavarian State Social Court, Judgment of 07.11.2019 – L 16 AS 858/16

Cost reduction request

Guiding principle (Editor):
The alleged obstacles to mediation due to a Schufa entry or previous insolvencies are not suitable to lead to a subjective impossibility of cost reduction.

Source: socialcourtsability.de

2. Decisions of the social courts on employment promotion law (SGB III)

2.1 – SG Karlsruhe, judgment of July 11, 2019 – Ref. 11 AL 670/18

Reduction of a waiting period due to job abandonment in cases of particular hardship, affirmed here in this individual case.

Source: Sozialgericht-karlsruhe.justiz-bw.de

2.2 – Social Court Karlsruhe, judgment of June 28, 2019 (legally binding), file number: 11 AL 1152/19

Regarding the recognition of an important reason pursuant to Section 159 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III) for the termination of the employment relationship in the case of caring for a close relative, this was denied in the individual case.

Source: Sozialgericht-karlsruhe.justiz-bw.de

3. Decisions of the State Social Courts on Social Assistance (SGB XII)

3.1 – LSG Berlin-Brandenburg, Judgment of 17 October 2019 – L 15 SO 142/14

For older people in Berlin receiving SGB XII assistance, there is more money, because the actual housing costs are to be covered, since the needs of "older people" cannot be determined from either the rent index or the housing benefit law.

Determining the Appropriate Rent for Recipients of Social Security Benefits (SGB XII), an article by Attorney Kay Füßlei.
As early as 2013, the Federal Social Court (BSG) ruled that the Berlin Housing Association (WAV Berlin) had not properly considered the rental costs for elderly people. The agency responsible for basic income support must, within the framework of a so-called conclusive concept, determine the permissible rent for recipients of social security benefits (BSG ruling of October 17, 2013 – B 14 AS 70/12 R).

But what then applies? This was also addressed in the oral hearing regarding the constitutional review action against WAV Berlin, but the question was left open. One possibility would be derivation from the rent index or the application of the Housing Act plus a surcharge.

Now, the Berlin-Brandenburg State Social Court (almost on the anniversary of the Federal Social Court's decision on October 17, 2019) has taken a third, radical, but ultimately correct step: if all other avenues of investigation have been exhausted, the actual rent costs must be covered. Neither the rent index nor the housing benefit law allows for the determination of the needs of "older people.".

In particular, the incorrect assessment has a direct impact on the cost reduction request.

The LSG states:
As long as, as in this case, there is no coherent concept regarding the appropriateness of the accommodation costs from the outset, there is also no requirement for a cost reduction request, which must regularly precede a reduction of the benefit to the appropriate costs in order to subjectively establish the conditions for a cost reduction.

In short: no cost reduction is possible without a request to reduce costs.

As a result, the rent actually paid must probably be recognized as an appropriate rent for recipients of basic income support under the German Social Code, Book XII (SGB XII).

Judgment of the Berlin-Brandenburg Higher Social Court of 17 October 2019 - L 15 SO 142/15

3.2 – Baden-Württemberg State Social Court, Judgment of 07.11.2019 – L 7 SO 934/19

Principle (Juris)
1. The fundamental right to a guaranteed minimum standard of living that ensures human dignity does not preclude a complete exclusion from benefits based on the applicant's ability to reasonably prevent or eliminate their need for assistance (following the Federal Constitutional Court, judgment of November 5, 2019 – 1 BvL 7/16). The exclusion from benefits pursuant to Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII) for persons who do not have a right of residence or whose right of residence is solely for the purpose of seeking employment, and who can prevent or eliminate their need for assistance in Germany by returning to their country of origin, is therefore constitutional.

2. The benefits under Section 23 Paragraph 1 of the German Social Code, Book XII (SGB XII) on the one hand and the bridging benefits under Section 23 Paragraph 3 Sentences 3 to 6 of the German Social Code, Book XII (SGB XII) on the other hand constitute different subjects of dispute.

3. The hardship provision of Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII) requires the existence of the conditions for bridging benefits according to Section 23 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII).

4. The granting of bridging benefits pursuant to Section 23 Paragraph 3 Sentences 3 to 6 of the German Social Code, Book XII (SGB XII) requires that the person in need of assistance is willing to leave the country.

5. The application of the regulations regarding bridging and hardship benefits pursuant to Section 23 Paragraph 3 Sentences 3 to 6 of the German Social Code, Book XII (SGB XII) must not render the exclusion from benefits pursuant to Section 23 Paragraph 3 Sentence 1 of the SGB XII ineffective. In particular, a hardship case does not exist simply because the immigration authority has not yet initiated any measures to terminate residency.

Source: socialcourtsability.de

4. Decisions of the State Social Courts and Social Courts on Asylum Law

4.1 – LSG Lower Saxony-Bremen, decision of 19 November 2019 (L 8 AY 26/19 B ER):

Guiding principle by Dr. Manfred Hammel:
For Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) to be applicable, it must be unequivocally established that the international protection originally granted to the applicant by Greece still exists. The burden of proof lies with the public authorities.

In cases where a restriction of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is unlawful, the benefit entitlement of a minor applicant is calculated according to Section 2 Paragraph 1 of the AsylbLG, because, as a child living in the household of her mother, who receives benefits under Section 2 Paragraph 1 of the AsylbLG, she is not required to reside in Germany for 15 or 18 months without significant interruption to receive these analogous benefits. This can be derived from Section 2 Paragraph 3 of the AsylbLG.

4.2 – LSG Baden-Württemberg, Judgment of 25 September 2019 (L 7 AY 3535/18):

Guiding principle Dr. Manfred Hammel:
The fact that an asylum seeker may be subject to a loan repayment claim does not preclude their consideration as assets within the meaning of Section 7 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).

Other provisions only apply if the money specifically given to the asylum seeker as a loan would have to be returned by him.

The loan repayment claim relates only to the sum of the money, not to the return of specific banknotes handed over.

“Benefits to be granted” within the meaning of Section 7a Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) are only those benefits that the authority responsible for the enforcement of the Asylum Seekers' Benefits Act (AsylbLG) regularly has to provide to fulfill the legal entitlements of the beneficiaries.

The scope of application of Section 7a Sentence 1 AsylbLG is therefore, as a rule, considerably limited and essentially extends to the cases of Section 7 Paragraph 1 Sentence 3 AsylbLG, in which beneficiaries – despite having assets – receive benefits in kind in a facility (especially in communal accommodation) and are therefore obliged to reimburse the public authority for costs.

For all other benefits, a security deposit pursuant to Section 7a Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is generally not required.

Section 7a sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not authorize the retention of assets for the purpose of generally establishing the subordination of benefits under the AsylbLG or for securing any claims for reimbursement.

Assets within the meaning of Section 7 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) are considered "available" if they can be used to cover current necessary living expenses without any factual or legal obstacles, i.e., if they are readily available funds (in accordance with Section 82 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII)). This cannot be assumed to be the case with sums of money confiscated by authorities.

5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes

5.1 – On the Constitutionality of Hartz IV Sanctions – Prof. Dr. Marc Sieper – juris

Comment on: Federal Constitutional Court, First Senate, Judgment of 5 November 2019 – 1 BvL 7/16

Author: Prof. Dr. Marc Sieper

Guiding Principles
1. The central constitutional requirements for the design of state basic income support benefits arise from the fundamental right to a dignified minimum standard of living (Article 1, Paragraph 1 of the Basic Law in conjunction with Article 20, Paragraph 1 of the Basic Law). Physical and socio-cultural existence must be uniformly guaranteed. The human dignity on which this entitlement is based belongs to everyone and is not lost even through supposedly "undignified" behavior. However, the Basic Law does not preclude the legislature from making the receipt of subsistence-level benefits subject to the principle of subsidiarity, i.e., from making them available only when people cannot primarily secure their own existence and genuine need exists.

2. The legislature may require employable persons who are unable to secure their own livelihood and therefore claim state benefits to actively participate, to a reasonable extent, in preventing or overcoming their own need. It may also choose to enforce proportionate obligations with proportionate sanctions in this regard.

3. If an individual fails to fulfill their obligation to overcome their own need without good cause, and the legislature sanctions this by temporarily withdrawing subsistence benefits, it creates an extraordinary burden. This is subject to strict requirements of proportionality; the otherwise broad scope for assessing the suitability, necessity, and reasonableness of regulations governing the welfare state is limited here. Forecasts regarding the effects of such regulations must be sufficiently reliable; the longer the regulations are in force and the longer the legislature is thus able to obtain well-founded assessments, the less sufficient it is to rely on plausible assumptions. Furthermore, it must actually be possible for those affected to avert the reduction of subsistence benefits through their own actions; it must therefore be their own responsibility to create, in a reasonable manner, the conditions necessary to receive the benefit again even after a reduction.

Further information: www.juris.de

5.2 – Subsistence Level Luxembourg Style – The ECJ on the Possibility of Sanctions for Subsistence Benefits:

Benefits to guarantee a dignified standard of living are inviolable. This was decided by the Grand Chamber of the ECJ in Case Haqbin (C-233/18) on November 12, 2019, with regard to refugee social law. Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) does not meet the requirements of the ECJ, and the German Federal Constitutional Court (BVerfG) could ultimately lose out if it disregards the ECJ's case law and the social courts instead seek guidance from Luxembourg on the sanctions system.

The decision came just one week after the German Federal Constitutional Court, with lengthy but hardly convincing arguments (see, for example, here), attempted to justify why the withdrawal of subsistence benefits (a minimum below minimum) is possible – indeed, why benefit reductions of up to 100 percent cannot be ruled out. The European Court of Justice, however, clearly stated that benefits that guarantee a dignified standard of living (i.e., a dignified minimum standard of living) are non-negotiable and may under no circumstances be sanctioned, and therefore restricted or withdrawn. Member States must guarantee a dignified standard of living permanently and without any interruption, even temporary.

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