1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, judgment of 08/29/2019 – B 14 AS 43/18 R
Custody rights can lead to a larger apartment for Hartz IV recipients – but each case requires individual assessment
Guiding principle (Editor):
When determining specific appropriateness, despite the right of access between parents and child protected by Article 6, paragraphs 1 and 2 of the Basic Law, higher accommodation costs or space requirements of the parent entitled to access should not be automatically recognized. Rather, an individual decision is required, taking into account, among other things, the specific arrangements for access, the child's age, the living situation, and the housing conditions of the parent entitled to access. Based on these criteria, the access rights of the single plaintiff with his then four-year-old daughter, which are also facilitated in an apartment of no more than 50 square meters, are not objectionable.
Source: socialcourtsability.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG NRW, Judgment of 09.10.2019 – L 7 AS 922/18
Legal principle, Attorney Jan Häußler, Essen:
A delayed invoice does not allow fees for the use of refugee accommodation to be shifted to a different period as a necessary expense. The local jurisdiction of the social security agency responsible under Book II of the German Social Code (SGB II) remains in effect, even if the residents of the accommodation are already living elsewhere at the time the payment is due (i.e., when the fee notice is issued).
Summary and commentary by attorney Jan Häußler:
The Higher Social Court of North Rhine-Westphalia (LSG-NRW) has, for the first time at a higher court level, ruled on who has local jurisdiction when a fee notice for accommodation costs is issued only after the refugees have already moved out of the accommodation. The LSG considers the view expressed by the Bavarian State Ministry for Family, Labor and Social Affairs in its circular of September 27, 2019, that the needs could be shifted away from the months of occupancy by sending out delayed fee notices, to be incorrect.
The background to Bavaria's legal position is that many refugees, after their initial accommodation in Bavaria, take their first freely chosen apartment in another federal state (often North Rhine-Westphalia). By issuing the fee notices for accommodation costs only after the refugees have already moved out of the accommodation, the southern federal state hopes to achieve financial savings at the expense of the receiving state. The State Ministry bases its legal position on the jurisprudence of the Federal Social Court (BSG), according to which annual bills for heating and operating costs, as well as the purchase of fuel consumed during the year, are considered one-time expenses at the time they are due or purchased.
The Higher Social Court (LSG) does not consider the aforementioned exceptions comparable to the circumstances of the present case. In principle, the need for shelter against cold and weather arises in the month in which a dwelling is occupied. If, however, the state administration were able to determine the month of need and local jurisdiction at the same time as the due date, there would be a significant risk of manipulation.
The judgment is not yet legally binding, as the LSG has granted leave to appeal due to the fundamental importance of the matter.
I consider the practical significance of this decision to be high, as a backlog of fee notices has accumulated, particularly in Bavaria, due to disputes over the legality of Bavarian state law. Refugees who have moved to North Rhine-Westphalia (NRW) often find themselves in a difficult position, as both the local authorities here and the responsible authorities in Bavaria refuse to cover the costs. In such cases, I recommend applying for cost coverage from both agencies and simultaneously pursuing legal action against both, since the highest court has not yet definitively ruled on who is ultimately responsible for covering the costs. If the authorities have rejected your application, you or any supporting institutions are welcome to contact me for out-of-court and court representation.
2.2 – State Social Court of Saxony-Anhalt, decision of 30.08.2019 – L 4 AS 276/19 B
Regarding fines in social court proceedings
Principle (Juris)
1. A fine imposed on a party who has provided an insufficient excuse is not intended to punish non-compliance with a court order for personal appearance. Rather, it requires a discretionary assessment of whether the purpose of this order – the promotion of the clarification of the facts – is hindered and the proceedings thereby delayed. The circumstances surrounding the non-appearance must also be taken into account.
2. The appeal procedure against an administrative fine order requires a separate decision on costs, the legal basis of which is the legal principle from § 46 OWiG in conjunction with § 467 para. 1 StPO.
Source: socialcourtsability.de
2.3 – State Social Court of Saxony-Anhalt, Judgment of 06.06.2019 – L 4 AS 47/16
Principle (Juris):
Even according to § 11 para. 2 sentence 1 no. 3 SGB II aF, the annual contribution for motor vehicle liability insurance was not to be deducted in full from the earned income in the month of payment, but rather the partial amount attributable to the calendar month.
Source: socialcourtsability.de
2.4 – State Social Court of Saxony-Anhalt, Judgment of 04.07.2019 – L 5 AS 443/14
Principle (Juris)
1. In principle, the person entitled to benefits bears the burden of proof to demonstrate that they have used up their (former) assets below the asset allowance at the time of application.
2. Regarding the proof of the negative fact of asset depletion, the burden of proof may be eased for the benefit recipient who bears the burden of proof. In particular, it is crucial whether this person has sufficiently fulfilled their obligation to provide evidence regarding the depletion of their assets.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Karlsruhe, Judgment of 15 July 2019 – S 5 AS 4062/18
Unemployment benefit II; provisional approval; fictitious final determination; review application
Principle (Juris):
A fictitious final determination pursuant to Section 41a Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) cannot be revoked within the framework of a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X).
Source: socialcourtsability.de
3.2 – Altenburg Social Court, Judgment of 28 November 2019 – S 42 AS 2020/17 – legally binding
Principle (Juris)
1. From the wording, “The actual income received must be taken into account,” in an objection directed against a provisional benefit notice pursuant to Section 41a Paragraph 1 of the German Social Code, Book II (SGB II), it cannot, upon proper interpretation, be inferred, without further explanation or clarification, an application by the beneficiary within the meaning of Section 41a Paragraph 4 Sentence 2 No. 3 of the German Social Code, Book II (SGB II) for a final determination of the benefit entitlement on the basis of actual monthly income.
2. Section 41a paragraph 4 sentence 1 of the German Social Code, Book II (SGB II) and Section 41a paragraph 6 sentences 2 and 3 of the SGB II permit, within the framework of the final benefit determinations pursuant to Section 41a paragraph 3 sentence 1 of the SGB II, a deviation from the monthly principle of Section 41 paragraph 1 of the SGB II and a balancing of back payments and overpayments within a benefit period. If the benefit provider has determined a total overpayment amount in application of these provisions and set it for repayment, no legitimate expectation can be established in subsequent legal proceedings that the amount of the final benefits set too high for individual months will remain valid.
Source: socialcourtsability.de
3.3 – SG Dortmund, judgments of 11.12.2019 – S 30 AS 3277/19, S 30 AS 4639/19
Guidance (Attorney Johannes Christian Heemann, Dresden)
1. If the authority wrongly rejects an objection as inadmissible, an action for annulment can be brought to seek the isolated annulment of the objection decision and refer the matter back to the authority (cf. Social Court Duisburg, judgment of 26.04.2018 – S 49 AS 857/17, para. 23 ff.).
2. The legal principle of Section 73 Paragraph 6 of the Social Court Procedure Act (SGG) applies analogously to preliminary proceedings. The authority may only demand the submission of an original power of attorney from the attorney appearing in the objection proceedings if there have been repeated indications of deficiencies in the attorney's authorization in the past. The decisive factor is that it must be clear why the authority considers the submission of the power of attorney necessary within the meaning of Section 13 Paragraph 1 Sentence 3 of the German Social Code, Book X (SGB X) (see Federal Social Court (BSG), decisions of January 20, 2016 – B 14 AS 180/15 B, B 14 AS 188/15 B).
3. If the authority has opened electronic access pursuant to Section 36a Paragraph 1 of the German Social Code, Book I (SGB I), it must inform the applicant in the legal remedies information about the possibility of filing an objection electronically. If this information is omitted, the legal consequences information is incorrect, so that the one-year time limit of Section 66 Paragraph 2 of the German Social Courts Act (SGG) applies to filing the objection.
4. Decision of the Constitutional Court on sanctions under the German Social Code, Book II (SGB II)
4.1 – Decision of the Constitutional Court of the State of Berlin of 11 December 2019 – VerfGH 43/17
Urgent legal protection in cases of 30% sanctions – Decision of the Constitutional Court of the State of Berlin, prepared by Attorney Kay Füßlein, Berlin
My client was sanctioned by 30%.
As is well known, an objection to this has no suspensive effect (the sanction takes effect immediately on the next first day), so an application for preliminary legal protection has been filed (one reason for the long processing time at the social and administrative courts in general: preliminary legal protection is processed with priority, the rest has to wait...)
A decision was issued after the application was rejected without further examination of the facts, as a 30% sanction must be accepted for the time being: the intervention was not severe enough.
The clarification of whether the sanction is unlawful or not only takes place in the "normal legal proceedings" - which can easily take two or three years.
The Constitutional Court of the State of Berlin saw this as a violation of the fundamental right to effective legal protection under Article 15 of the Constitution of Berlin (which is identical in content to Article 19 of the Basic Law).
The Constitutional Court states:
Denying preliminary legal protection on the grounds of a lack of urgency in cases of a 30 percent reduction in the standard benefit of unemployment benefit II misconstrues the explained content of the right to effective legal protection (see decision of April 11, 2014 – VerfGH 31/14′-, para. 17 with further references to a nearly identically reasoned decision by the same chamber). The necessary assessment of the individual case is lacking, instead of a schematic urgency test that focuses solely on the amount of the reduction.
If the standard benefit is reduced by 30 percent during an approval period that is still ongoing at the time of the decision, it is generally assumed that the matter is urgent.
This is mandated by the right to a dignified minimum standard of living under Article 6 of the Constitution of the Federal Republic of Germany (VvB) in conjunction with the social welfare principle; the standard benefit of unemployment benefit II is a subsistence-securing benefit (decision of April 11, 2014, loc. cit.; cf. Federal Constitutional Court, judgment of February 9, 2010 - 1 BvL 1/09 - juris para. 147). The burden of a 30 percent reduction in the standard benefit of this benefit is extraordinary (Federal Constitutional Court, judgment of November 5, 2019 - 1 BvL 7/16 -, juris para. 159).
In practice, this leads to a strengthening of rights regarding sanctions, which are limited to 30% until further notice.
Decision of the Constitutional Court of the State of Berlin of 11 December 2019 - VerfGH 43/17
www.ra-fuesslein.de
TO THE full text of the decision
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Lower Saxony-Bremen State Social Court, Judgment of 28 November 2019 – L 8 SO 240/18
Autism therapy as an aid to appropriate schooling according to § 54 para. 1 sentence 1 SGB XII in conjunction with § 12 no. 1 Integration Assistance Ordinance
1. In the case of an autism spectrum disorder in the sense of early childhood autism, in addition to a mental disability within the meaning of Section 3 of the Integration Assistance Ordinance (juris: BSHG§47V), a mental disability within the meaning of Section 2 of the Integration Assistance Ordinance (juris: BSHG§47V) may also exist, in particular in the case of other damage to body structures or functions (with accompanying intellectual impairment).
2. Insofar as an autism spectrum disorder constitutes both a mental and an intellectual disability within the meaning of Sections 2 and 3 of the Integration Assistance Ordinance (juris: BSHG §47V), in individual cases there may (also) be an entitlement to reimbursement of costs for outpatient autism therapy in the form of social assistance as support for appropriate schooling within the framework of compulsory education pursuant to Section 19 Paragraph 3 of the German Social Code, Book XII (SGB XII) in conjunction with Sections 53 and 54 Paragraph 1 Sentence 1 Number 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 12 Number 1 of the Integration Assistance Ordinance (juris: BSHG §47V) (continuation of the ruling of the Higher Social Court of Celle-Bremen of December 7, 2017 – L 8 SO 206/17 B ER – juris para. 23).
3. As a rule, the social welfare provider has an obligation to provide services outside the core area of the school's educational work, as long as and to the extent that the school does not provide corresponding assistance (see also BSG of 22.3.2012 – B 8 SO 30/10 R = BSGE 110, 301 = SozR 4-3500 § 54 No. 8, para. 25).
Source: www.rechtsprachung.niedersachsen.de
Note:
The social welfare office must cover the cost of autism therapy for primary school children.
The LSG Celle-Bremen has ruled that the social welfare office must bear the costs of autism therapy for a primary school child.
Further information: www.juris.de
6. Decisions of the State Social Courts on Asylum Law
6.1 – Bavarian State Social Court, decision of 15 November 2019 – L 8 AY 43/19 B ER
Replacement of Department 7 (Transport) with benefits in kind pursuant to Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG)
Guiding principle (Editor):
1. Provision of cash benefits instead of benefits in kind, in this case, a bus ticket. Affirmation of the possibility of replacing individual standard needs-related items with benefits in kind and deducting corresponding items from the respective income and expenditure statement, insofar as these are fully covered by benefits in kind.
Principle (Juris)
1. On the admissibility of the appeal pursuant to Section 172 Paragraph 1 of the Social Court Act (SGG) in the case of continued monthly approval of benefits under the Asylum Seekers' Benefits Act (AsylbLG) and an open-ended application in preliminary legal protection proceedings.
2. Section 2 paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) grants the competent authorities discretionary power (see also the Senate's decision of November 19, 2018 – L 8 AY 23/18 B ER). This follows from the legislative history and the purpose of the provision.
3. Taking into account the wording of Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) and its legislative history, local circumstances are given greater weight in the discretionary assessment than circumstances relating to the group of persons entitled to benefits.
4. The reduction of the amount of money for Department 7 (Transport) according to § 5 para. 1 RBEG is lawful when a bus ticket for the entire local transport network is issued, a shuttle service is offered and train tickets for interregional needs are issued.
5. It is permissible to replace individual items relevant to standard needs with benefits in kind and to exclude the corresponding item from the respective income and expenditure survey, provided that it is fully covered by benefits in kind. Otherwise, the legislative intent in Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) would be undermined.
Source: socialcourtsability.de
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – New working aid from the Paritätische Gesamtverband (Parity Welfare Association): Revocation, withdrawal and expiry of protected status
More information: www.der-paritaetische.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
