1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on employment promotion under the German Social Code, Book III (SGB III)
1.1 – BSG, Judgment of 10 December 2019 – B 11 AL 4/19 R
Guidance:
Unemployed individuals participating in a subsidized retraining program are not required to be constantly available for job placement efforts by the employment agency. For example, if they forget to notify the agency of a change of address, the agency cannot immediately terminate their unemployment benefit I because of this oversight.
Source: www.evangelisch.de and www.spiegel.de
1.2 – BSG, Judgment of 12.12.2019 – B 14 AS 26/18 R
Guiding principle (Editor):
There is no entitlement to recognition of the monthly payment to the bank as an expense for accommodation under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), because these are debts from previous obligations. Instead, the assumption of debts to secure accommodation was governed during the period in question by Section 22 Paragraph 5 of the SGB II (now: Section 22 Paragraph 8 of the SGB II).
Source: www.bsg.bund.de
Note:
When is the job center required to finance home ownership?
Guest article by Dr. Martin Kellner, LL.M. (Vanderbilt), Judge at the Freiburg Social Court
More information: www.lto.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, Judgment of 07.11.2019 – L 16 AS 858/16
Regarding the requirements for sufficient cost reduction efforts
1. There is no entitlement to recognition of unreasonable housing costs as a need beyond the standard period of six months if there are virtually no efforts to reduce costs.
2. Documented cost-reduction efforts, amounting to eleven applications for available rental apartments over seven months, of which only four met the defendant job center's criteria for reasonableness, do not constitute sufficient efforts to reduce unreasonable housing costs. Both the frequency of the documented applications for vacant apartments and the selection of often unsuitable apartments are inadequate.
3. Because of the plaintiffs' almost complete lack of cost-cutting efforts, the defendant is also not obliged to prove that adequate housing actually existed.
Source: www.gesetze-bayern.de
2.2 – LSG Bayern, decision of 6 August 2019 (L 16 AS 450/19 B ER):
Guiding principle Dr. Manfred Hammel:
Even in the case of persons in need of care, it must be assumed that they have the capacity to work within the meaning of Section 7 Paragraph 1 Sentence 1 No. 2 of the German Social Code, Book II (SGB II) in conjunction with Section 8 Paragraph 1 of the SGB II, because according to Section 44a Paragraph 1 Sentence 7 of the SGB II, the capacity to work of applicants is presumed as a prerequisite for a claim for benefits asserted under the SGB II, as long as a corresponding clarification has not been made in relation to the social welfare provider.
The exclusion criterion arising from Section 7 Paragraph 1 Sentence 2 No. 2 b) of the German Social Code, Book II (SGB II), namely a right of residence solely for the purpose of job seeking, does not apply if, for example, an applicant can assert a derived right of residence as a family member pursuant to Section 2 Paragraph 2 No. 6 of the Freedom of Movement Act/EU in conjunction with Section 3 Paragraph 1 Sentence 1 / Paragraph 2 No. 2 of the Freedom of Movement Act/EU.
In the case of family reunification, the continued existence of the receiving person's right of free movement pursuant to Section 2 Paragraph 3 of the Freedom of Movement Act/EU is not relevant. This right of residence remains provisionally in effect during the period of the receiving person's receipt of unemployment benefit I or II, in accordance with Section 2 Paragraph 3 Sentence 1 Number 2 of the Freedom of Movement Act/EU.
Maintenance is granted in accordance with Section 3 Paragraph 2 No. 2 of the Freedom of Movement Act/EU if a Union citizen entitled to freedom of movement actually provides benefits to a relative living here which can be considered as means of covering the necessary cost of living.
This applies if a son provides his mother with free accommodation after her entry into the federal territory by letting her have a room free of charge in the apartment he shares with his subtenant, covers the contributions for voluntary health and long-term care insurance as well as all other costs incurred, e.g. for food and drinks, medicines and hygiene products, for years and ensures outpatient care in cooperation with a care service.
The affirmation of the crucial aspect of whether someone actually provides maintenance to another person does not depend on how they obtained the means necessary for this maintenance. It is irrelevant whether the receiving person acquires the funds required in this context through gainful employment or in some other way.
2.3 – State Social Court of Saxony-Anhalt, Judgment of 15 April 2019 – L 4 AS 32/16
Regarding the granting of loans pursuant to Section 24 Paragraph 5 of the German Social Code, Book II (SGB II)
Guiding principle (Editor):
Conversion of loan-based benefits under the basic income support for job seekers according to the Second Book of the Social Code (SGB II) into grant benefits, here denied, because a house property encumbered with a usufruct or right of residence is not fundamentally unusable.
Principle (Juris)
1. The mere fact that the six-month approval period of a loan, during which the intended asset realization could not be successfully completed, does not change the legal assessment of the preceding forecast decision. It is neither to be assumed that the asset is unusable nor is the loan automatically converted into a grant.
2. The realization of assets may take longer than a specific, imminent six-month approval period; therefore, loans may be granted repeatedly. Only the timeframe for the required forecast decision is limited to the upcoming approval period.
3. A legally secured right of residence is not a legal obstacle to exploitation if it is only a formal burden because the beneficiary does not exercise it and no longer has any interest in exercising the right.
Source: socialcourtsability.de
2.4 – State Social Court of Saxony-Anhalt, Judgment of 22 August 2019 – L 5 AS 549/18 – legally binding
Principle (Juris):
An employer is responsible for an employee's termination within the meaning of Section 92 Paragraph 2 Sentence 2 No. 3 of the German Social Code, Book III (SGB III), even if he had given the employee the impression that the employment relationship could only be continued under significantly changed conditions, and did not correct this false impression, which was recognizable to him.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Düsseldorf, Judgment of 02.10.2019 – S 29 AS 3925/16
Remscheid: Job centers must pay higher rents
Guiding principle (Editor):
The concept for determining the accommodation needs of the city of Remscheid in 2016 is not conclusive, because the concept is not based on any representative data.
Source: socialcourtsability.de
3.2 – Social Court Düsseldorf, Judgment of 02.10.2019 – S 29 AS 1037/18
Job centers have to pay higher rents
The guiding principle (editor)
of the concept for determining the accommodation needs for the Rhein-Kreis Neuss from December 2016 is not conclusive.
Source: sozialgerichtsbarkeit.de and dejure.org
3.3 – SG Berlin, decision of 29.11.2019 – S 140 AS 8530/19 ER, a contribution by attorney Kay Füßlein, Berlin
According to general opinion, the four-year limitation period applies to the claim for reimbursement pursuant to Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III), in accordance with the corresponding application of Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) (Thuringian State Social Court, judgment of March 22, 2018 – L 9 AS 323/16 – and Lower Saxony-Bremen State Social Court, judgment of September 27, 2016 – L 11 AS 1004/14).
“Damage management” through avoidance of legal proceedings?” (Verdamp lang her II)
“Claims management through avoidance of case law?” is the title of an article by Piontek (r+s 2016, 335) which deals with the extent to which insurance companies avoid rulings of the Federal Court of Justice on certain legal issues by withdrawing appeals or issuing acknowledgments.
Because, as is well known,
where there is no plaintiff/defendant, there is also no judge.
Everyone is therefore anxiously awaiting to see whether the four-year statute of limitations for reimbursement claims will now also apply to demands for repayment from the Job Center/Federal Employment Agency (mostly from Recklinghausen). The Social Court of Speyer, the Higher Social Court of Rhineland-Palatinate, and subsequently other courts had ruled accordingly (see also "Verdamp lang her")
According to the Federal Social Court (BSG) announcement (scheduled hearing – 11th Senate session on December 10, 2019), the Federal Employment Agency withdrew its appeal against the judgment of the Rhineland-Palatinate Higher Social Court of September 27, 2018 – L 1 AL 88/17, so that there will be no case law from the BSG on the relationship between Section 50 of the German Social Code, Book X (SGB X) and Section 52 of the German Social Code, Book X (SGB X), i.e., the question of when a four-year and when a 30-year limitation period applies, for the foreseeable future.
At least the Social Court of Berlin has once again taken the view that a four-year limitation period applies (decision of the Social Court of Berlin of 29 November 2018 – S 140 AS 8530/19 ER)
www.ra-fuesslein.de
regarding the decision: www.ra-fuesslein.de
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – Social Court Karlsruhe, Judgment of 04.11.2019 – S 5 AL 2577/19
Unemployment benefit; wages; severance pay; cancellation; substantial change; withdrawal; subsequent addition of reasons; alteration of the substance; discretion; protection of legitimate expectations; reinterpretation
Principle (Juris):
The addition of further reasons in the appeal decision may not fundamentally alter the content of the contested administrative act. Therefore, a change in the legal basis is not permissible if a previously mandatory decision would become a discretionary decision in a specific case – for example, when switching from Section 48 of the German Social Code, Book X (SGB X) to Section 45 of the SGB X.
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – North Rhine-Westphalia State Social Court, Judgment of 14 October 2019 – L 20 SO 219/16
Guiding principle (Editor)
1. On the question of a claim under § 74 SGB XII in the case of miscarriage, here in the negative.
2. If Section 14 Paragraph 2 of the Burial Act grants a right to burial in favor of the parents of a stillborn or miscarried child, it is disputed whether this right simultaneously implies a duty of burial on the part of the parents.
3. In the Senate's view, there is no inherent obligation for parents to arrange a burial in cases of miscarriage or stillbirth. Such an obligation arises neither from Section 14 Paragraph 2 Sentence 1 of the North Rhine-Westphalia Burial Act nor from Section 8 Paragraph 1 of the North Rhine-Westphalia Burial Act.
Source: socialcourtsability.de
Note:
No social assistance is provided for the burial of a miscarriage.
The LSG Essen has ruled that parents are not entitled to have funeral costs covered by social assistance funds after a miscarriage, as they are not obligated to arrange the funeral, unlike the hospital operator.
Continue on Juris
5.2 – LSG Berlin-Brandenburg, Judgment of 17 October 2019 (L 15 SO 142/14):
Guiding principle Dr. Manfred Hammel:
The concept of appropriateness within the meaning of Section 35 Paragraph 2 Sentence 1 SGB XII must also be specified by the criteria of Sections 22 a to c SGB II.
Section 35a of the German Social Code, Book XII (SGB XII) (“statute”) is based on the principle that a statute issued pursuant to Sections 22a to c of the German Social Code, Book II (SGB II) should only be binding on the social welfare provider if these administrative regulations include special provisions for the groups of persons entitled to benefits that are primarily covered by the SGB XII.
At this point, the special, differing housing needs of this clientele must be taken into account.
Typical, special needs of older people are those that arise from long periods of residence and/or the commendable need to continue living in a familiar or family-oriented environment in an advanced stage of life.
The working life of older people is generally considered to be over. This also applies to most opportunities to build up savings from earned income for later stages of life.
People here usually only move for compelling personal reasons such as illness and need for care, or to find a place to live closer to close relatives.
Social assistance benefits must not serve the purpose of maintaining a standard of living acquired before becoming dependent on public assistance.
However, the legislator is free to specify the level of social assistance security in more detail, subject to constitutional minimum limits, as has been done via § 35a SGB XII regarding the consideration of special housing needs of older people.
6. Decisions of the State Social Courts on Asylum Law
6.1 – Lower Saxony-Bremen State Social Court, decision of 19 November 2019 – L 8 AY 1/19 B ER
Keywords: Age estimation, date of birth, abusive manipulation of residency status, proportionality
Guiding principle (Attorney Jan Sürig, Bremen)
1. In expedited proceedings concerning the granting of ongoing subsistence benefits, a disputed period of one year is generally assumed.
2. In view of the sanction-like nature of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), not every behavior that is in any way reprehensible is sufficient to justify the denial of benefits. The nature, extent, and consequences of the breach of duty must be so serious for the foreigner and his minor children that the breach of duty must be given considerable weight within the framework of the principle of proportionality.
3. The burden of proof for abusive conduct lies with the benefit provider.
4. The withdrawal of an asylum application pursuant to Section 13 of the Asylum Act before the formal asylum application has been submitted pursuant to Section 14 of the Asylum Act is not an abuse of rights.
5. Even an incorrect statement of the date of birth is not comparable to the typical cases of abusive self-influence of the length of stay, such as going into hiding and providing false personal details in the sense of identity fraud.
6.2 – Lower Saxony-Bremen State Social Court, decision of 4 December 2019 – L 8 AY 36/19 B ER
Fundamental constitutional doubts exist regarding all reduction provisions of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), in light of the decision of the Federal Constitutional Court of 5 November 2019 – 1 BvL 7/16, in particular regarding the provisions concerning entry in order to enter the country within the meaning of Section 1a of the AsylbLG
Guiding principle (Attorney Jan Sürig, Bremen)
: Therefore, legal aid and an unambiguous announcement of a positive preliminary injunction decision;
"In the present proceedings for preliminary legal protection, a judicial decision based on a balancing of interests is also possible (cf. Federal Constitutional Court, decision of 12 May 2005 - 1 ßvR 569/105 - juris), because the Senate does not currently have sufficient information to assess the legal validity of the concept of restrictions on claims under Section 1a AsylbLG and thus its proportionality.".
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – LSG NSB, judgment of November 6, 2019 – L 2 EC 7/19
Monthly revenue sharing leads to higher parental allowance
The LSG Celle-Bremen has strengthened the rights of mothers who receive monthly profit-sharing payments in addition to their employee salary.
Further information: www.juris.de
7.2 – Access to the healthcare system for EU citizens, EEA nationals and Swiss nationals
The German Federal Association of Independent Welfare Organizations (BAGFW) and the Equal Treatment Office for EU Workers, which is part of the staff of the Federal Government Commissioner for Integration, have published a comprehensive brochure entitled "Access to the Healthcare System for EU Citizens, Nationals of the EEA and Switzerland – Brochure for Advisors." Written by Prof. Dorothee Frings, the brochure is highly recommended!
Source: www.bagfw.de
7.3 – Housing Benefit Act 2020 – A law with pitfalls, an article by Herbert Masslau
More information: www.herbertmasslau.de
7.4 – VG Cologne v. December 12, 2019 – Ref. 20 L 2567/19
Despite being obligated to leave the country, foreigners are entitled to accommodation in homeless shelters.
According to the Administrative Court, the city, as the regulatory authority, is obligated to house the applicants in a homeless shelter until they are assigned to a reception center, as they are unable to secure accommodation on their own. The right to accommodation is not negated by the obligation to leave the country or the border crossing certificate. Rather, the right exists independently of the immigration law issue of the obligation to leave, as long as the applicants remain homeless and are still within the jurisdiction of the City of Cologne.
The parties involved can appeal the decision, and the Higher Administrative Court of Münster would then decide on the appeal.
juris editorial team
Source: Press release from the Cologne Administrative Court dated December 12, 2019: www.juris.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
