1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, Judgment of 30.10.2019 – B 14 AS 2/19 R
Unemployment benefit II – Accommodation and heating – Housing procurement costs – Necessary relocation with prior approval – Double rent payment during the overlap period – Recognition of actual expenses for two apartments as accommodation needs in exceptional cases
Recognition of double rent requires that the expenses are unavoidable and specifically reasonable.
Guiding principle (Editor):
The assumption of double rent does not constitute housing procurement costs, but rather costs of accommodation according to § 22 para. 1 SGBII.
Source: www.rechtrecht-im-internet.de
1.2 – BSG, Judgment of August 29, 2019 (B 14 AS 43/18 R):
Guiding principle Dr. Manfred Hammel:
When exercising visitation rights for a child permanently separated from the child's mother, the need for accommodation (§ 22 para. 1 sentence 1 SGB II) is neither to be increased as a matter of course, nor can it be assumed that no further housing needs exist if visitation is of the usual scope.
This is a matter of individual circumstances.
While Section 22b Paragraph 3 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) does require increased living space due to the exercise of visitation rights, it does not specify the conditions for this. Under no circumstances can it be concluded from this that a job center must always recognize an increased need for living space in accordance with Section 22 Paragraph 1 Sentence 3 of the SGB II.
Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) and the corresponding Section 22b Paragraph 3 of the SGB II serve the purpose of enabling the exercise of the right of access in cases of need.
The right of a parent to have contact with their child is protected by Article 6 Paragraph 2 Sentence 1 of the Basic Law, because contact with the child is considered an essential prerequisite and basis for exercising parental rights and is in the best interests of the child.
For the parent who does not live permanently with the child, contact with their child is a crucial prerequisite for personal contact, enabling them to build or maintain a closer relationship with their child, participate in their development, and fulfill their parental responsibilities.
Each case requires a proper assessment of the specific circumstances.
The recognition of an additional need for living space can only be considered if the place of personal contact is also the residence of the person entitled to contact, and depends on factors such as the number of children to be cared for, the frequency and duration of contact, the age and living situation of the children as well as that of the person entitled to contact, their relationship to the child, the relationship between the separated parents and the specific living conditions.
The decision to grant visitation rights to a single father of a four-year-old daughter is also lawful in a maximum 50 square meter apartment, especially if visitation essentially only takes place on two weekends per month and no increased need for living space (e.g. due to a disability) can be claimed and special retreat spaces are not required due to a critical parent/child relationship.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Rhineland-Palatinate State Social Court, Judgment of 22 May 2019 – L 6 AS 25/18
Regarding the scope of the review within the framework of a review procedure.
Guiding principle (Editor)
1. An application that triggers the obligation to review under Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) requires that the scope of the review mandate for the administration must be recognizable either from the application itself – possibly after interpretation – or from a response by the beneficiary following a specific inquiry by the social security institution, until the conclusion of the objection procedure.
2. The Federal Social Court (BSG) stated that, based on the application or the reason for it, the administration must be able to objectively determine in each individual case "why – legal error and/or incorrect factual basis – the beneficiary believes a review should take place" (Judgment of February 23, 2017, B 4 AS 57/15 R). As a criterion for the scope of the SGB II agency's duty to investigate, it must also be considered whether the beneficiary is represented (with legal expertise) or not, or whether previous contacts between the beneficiary and the administration provide any indications of the applicant's request.
3. In the present case, the plaintiffs did request a review of the decision in their review applications, i.e., they specifically identified it; however, it was not apparent to the defendant on what grounds a review was being claimed, i.e., the scope of the review mandate (i.e., legal errors and/or incorrect factual basis) was not apparent (see also BSG judgment of 23.02.2017, B 4 AS 57/15 R).
Source: socialcourtsability.de
2.2 – LSG Hessen, decision of 27.11.2019 – L 6 AS 185/19 B
Principle (Juris)
1. Frivolousness cannot be assumed solely when the central issue in the dispute is already the subject of a case pending before the Federal Constitutional Court, the Federal Social Court, or another supreme federal court, or of any other case designated as a "model case" (cf. in this regard Federal Constitutional Court, decision of November 18, 2009 – 1 BvR 2455/08 –, BVerfGK 16, 406). Rather, it is also conceivable if the legal question is (only) the subject of other lower court proceedings, because these may also provide valuable insights for the present case and thus render its (further) conduct unnecessary.
2. Particularly when it comes to subsistence benefits or other highly time-sensitive benefits, the assumption of frivolousness in this case – provided there are sufficient prospects of success – is only justified with regard to the purpose of legal aid and its constitutional basis if
(a) it is apparent to the party concerned whether their proceedings are sufficiently comparable to the proceedings whose outcome they are to await,
(b) it is foreseeable whether the legal question relevant in their proceedings will actually be decided in the preceding proceedings, and
(c) the conduct of the further proceedings in question is not likely to lead to an accelerated resolution. This will regularly (only) be the case if he is also involved in the preceding proceedings himself, but will generally be ruled out if the proceedings are "foreign" to him and there is no published (or otherwise accessible to the party involved) first-instance decision that can provide a sound basis for assessing whether the question of interest to him can and will actually be clarified in the preceding proceedings.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Wiesbaden, judgment of November 2, 2016 – S 5 AS 306/13
Single parents may be entitled to additional benefits despite their child being placed in boarding school
Guiding principle (Editor):
Single parents may be entitled to additional support for single parents even if the child is placed in a boarding school – the prerequisite being that the child regularly stays at home with the parent.
Source: socialcourtsability.de
3.2 – Social Court Halle (Saale), decision of 23 October 2019 – S 5 AS 1723/19 ER – legally binding
Needs for accommodation and heating, special circumstances of the individual case; forced auction of the owner-occupied house property
Principle (Juris):
A special case within the meaning of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) exists if the previous owner of a self-occupied accommodation, who was receiving benefits, has become the tenant of the same accommodation as a result of a forced auction and therefore increased needs for accommodation and heating arise.
Source: socialcourtsability.de
3.3 – Social Court Neuruppin, judgment of December 9, 2019 (S 6 AS 936/16):
No conclusive concept according to § 22 SGB II in the district of Oberhavel.
Guiding principle Dr. Manfred Hammel:
Within the framework of the concept represented by a SGB II provider for determining the appropriateness of costs of accommodation and heating (§ 22 para. 1 sentence 1 SGB II), the underlying data must ensure that employable benefit recipients (§ 7 para. 1 sentence 1 SGB II) have access to a sufficient number of apartments at the determined appropriate price.
This central requirement is not met if the appropriateness value stipulated in the municipal housing cost guidelines is based solely on consideration of existing rents, without differentiating according to when the apartments were last rented or when the rent was last changed.
Furthermore, if only about 16% of the housing offers recorded during the survey period fall within the limits of what is considered reasonable, meaning that only about half of the need for affordable housing can be met, then there is not enough suitable housing available for employable benefit recipients.
Source: Attorney Kay Füßlein
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, decision of 11 December 2019 – L 7 SO 3980/19 ER-B
Principle (Juris)
1. A ground for an order within the meaning of Section 86b Paragraph 2 of the Social Court Act (SGG) does not exist, for example, if the applicant can at least currently rely on his own resources and reasonable assistance from third parties and the applicant's statements do not provide any significant indications that the financial capacities are completely exhausted.
2. If the applicant has loan repayment claims against the landlord which he can offset against the landlord's rent claims with the consequence that the rent claims would be extinguished and any termination without notice issued due to payment default would become ineffective, then the applicant's accommodation is regularly not at risk and there is no ground for an order.
Source: socialcourtsability.de
4.2 – Freiburg Social Court, decision of October 24, 2019 (S 9 SO 4039/19):
Guiding principle by Dr. Manfred Hammel:
When applying for a personal budget (§ 29 SGB IX) or an advance payment thereof, the applicant must not only credibly demonstrate their individual rehabilitation needs, but also explain how these needs are to be met with the requested personal budget or advance payment. This can be done, for example, by presenting and substantiating an offer or a detailed needs-based plan, as well as its feasibility (e.g., through the so-called employer model). Without such explanations, the requested funds would have to be granted by the authorities without any guarantee of the legal objectives of the personal budget and the earmarking of funds as stipulated in § 29 SGB IX ("to enable the beneficiary to lead a life that is as self-determined as possible"), which is unacceptable.
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – Saxon State Social Court, decision of 13 December 2019 – L 8 AY 14/19 B ER – legally binding
The applicant's entitlement to benefits under the Asylum Seekers' Benefits Act (AsylbLG) is (was) to be restricted according to § 1a para. 1, para. 3 sentence 1 AsylbLG.
Summary:
1. Persons entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5 of the Asylum Seekers' Benefits Act (AsylbLG) – to which the applicant belongs – will only receive benefits under Section 1a Paragraph 1 of the AsylbLG from the day following the enforceability of a deportation threat or deportation order, provided that measures terminating their residence cannot be carried out for reasons attributable to them (Section 1 Paragraph 3 Sentence 1 AsylbLG). Accordingly, until their departure or deportation, they will only receive benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare (see Section 1a Paragraph 1 Sentence 2 AsylbLG). These conditions are met in the case of the applicant, who has been granted tolerated stay status.
2. Deportation measures could not be carried out because the individual failed to cooperate in obtaining a passport, passport substitute, or other travel document. This prevented the enforcement of the legally binding deportation order (§ 58 of the Residence Act). This constitutes a violation of § 48 para. 3 of the Residence Act. According to this provision, foreigners are obligated to cooperate in obtaining an identity document. This lack of cooperation represents typical abuse of rights within the meaning of § 1a para. 3 sentence 1 of the Asylum Seekers' Benefits Act (Federal Social Court, judgment of May 12, 2017 – B 7 AY 1/16 R).
3. Section 1a paragraph 3 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not violate the fundamental right to a guaranteed minimum standard of living that ensures human dignity.
4. The reduction of the applicant's benefits by one-third during the relevant period is therefore clearly not objectionable. This is also supported by the referenced judgment of the Federal Constitutional Court of November 5, 2019 – 1 BvL 7/16: According to this judgment, the 30 percent reduction in benefits (pursuant to Section 31a Paragraph 1 Sentence 1 of the Second Book of the Social Code [SGB II]) remains within the constitutionally permissible limits.
Source: socialcourtsability.de
Note:
Lower Saxony-Bremen State Social Court, decision of December 4, 2019 – L 8 AY 36/I9 B ER – Doubts about the constitutionality of benefit reductions under the Asylum Seekers' Benefits Act
More information: tacheles-sozialhilfe.de
5.2 – Social Court of Hanover, decision of December 20, 2019 (S 53 AY 107/19 ER):
Guiding principle by Dr. Manfred Hammel
on the incompatibility of § 3a AsylbLG with higher-ranking law.
Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) obviously refers single asylum seekers who are in reception centers, communal accommodations or comparable other accommodations (such as collective accommodations) to voluntary services from third parties, because this provision assumes a shared economy within the respective community of fate.
However, in this situation, the guarantee of a dignified minimum standard of living is not secured by a legal entitlement; that is, the legal entitlement to the guarantee of the necessary livelihood is not covered without the additional voluntary contributions of the other members of this community of fate existing within the collective accommodation.
The introduction of the special needs level of § 3a AsylbLG for asylum seekers in collective accommodations is not based on a realistic and conclusive calculation.
A single refugee housed in collective accommodation is obviously not part of a family-like living and economic community.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Double rent in the German Social Code, Book II (and Book XII), a contribution by Herbert Masslau
More information: www.herbertmasslau.de
6.2 – Child benefit repayment claim: Doubts about the jurisdiction of the North Rhine-Westphalia North Family Benefits Office to make central decisions on deferral and remission applications, an article by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
