1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – Federal Social Court, judgment of 5 September 2019 (B 8 SO 14/18 R):
Guiding principle Dr. Manfred Hammel:
A cohabiting partnership within the meaning of Section 20 of the German Social Code, Book XII (SGB XII) exists if this form of living is intended to be permanent, does not permit any other cohabitation of the same kind, and is characterized by inner bonds that establish mutual support between the two partners, i.e., goes beyond the relationship in a purely household and economic community.
At this point, it is not crucial whether these partners are single, widowed, divorced, or married to a third party. The decisive factor here is that marriage is legally possible after a divorce.
If the new cohabitation fulfills the criteria for a partnership based on mutual support and responsibility, then the mutual consideration of income and assets in this partnership merely represents a legal consequence of the decision, which is beyond the reach of the state, regarding the separation from the previous spouse and the commitment to a new partner.
Striking aspects here include the use of the pension received by the applicant, which is transferred to his roommate's account and does not fully cover his subsistence level, the question of why the applicant continues to live or be able to live in this location, and the circumstances of his several-month stays abroad.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Saxony-Anhalt, Judgment of 17 December 2018 – L 4 AS 481/17
Principle (Juris)
1. The district of Wittenberg does not constitute a single comparison area for the purposes of applying Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). The district falls into the comparison areas of Lutherstadt Wittenberg and the "Rest of the District," meaning that the district of Wittenberg consists of two comparison areas.
2. For the comparison area Lutherstadt Wittenberg, the reasonable value of a gross cold rent of €316.20 for a two-person household determined by the defendant is not objectionable.
3. In order to derive an accurate conclusion for the lower end of the housing market segment within a so-called conclusive concept following a complete survey of the housing market, a demand analysis differentiated by the size of the households in need must be prepared. If this results in a demand share of 38% and 39% for one-person and five-person households, respectively, which is significantly above the average (25 to 30%), it is insufficient to base the analysis on a percentile value of 40 for these apartment sizes.
4. The municipal authority must include a corresponding provision in the guidelines on reasonable housing costs if the concept developer, in the rent survey, has determined that, due to an insufficient number of advertised rents, a comparison of the availability of apartments on the current rental market with the determined existing rent value as a reasonable value is not possible and therefore the reasonableness of the housing costs must be decided on a case-by-case basis. If the municipal authority fails to include such a provision, the administrative regulation is unlawful in this respect, and the reasonable value established for the apartment size in question is not based on a sound concept.
Source: socialcourtsability.de
2.2 – State Social Court of Saxony-Anhalt, Judgment of 27 August 2019 – L 4 AS 345/18 – legally binding
Guiding principle (editor):
The concept for the district of Wittenberg is not conclusive.
Principle (Juris)
1. If data on apartments in single-family and two-family houses in a rural comparison area characterized by living in such buildings are not collected, there is no conclusive concept for determining reasonable accommodation costs.
2. To ensure the representativeness of the collected data for a concept, the (local) rental housing market must be realistically represented. The data collection must be as similar as possible to it in its composition and in the structure of the relevant characteristics.
3. A flawed sample does not become representative by including a larger number of data values.
4. When determining reasonable heating costs for central hot water preparation, the value for space heating shown in the German Heating Cost Index up to 2013 must be increased by the specified value for hot water preparation.
Source: socialcourtsability.de
2.3 – State Social Court of Saxony-Anhalt, Judgment of 20 November 2019 – L 2 AS 693/15
Unemployment benefit II – Exclusion of a trainee from benefits during maternity leave
Guiding principle (Editor)
1. The maternity allowance paid to the plaintiff is to be treated as current income (as Hengelhaupt in: Hauck/Noftz, SGB, as of January 2015, § 11 SGB II, Rn. 537; for one-off income LSG Bayern, decision of 13 February 2014 – L 7 AS 755/13 NZB).
2. The distribution rule then in force in Section 11 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II aF) ("For ongoing income received at intervals longer than monthly, Paragraph 3 (the rule for the distribution of one-off income) applies accordingly") is not applicable. This is because the advance payment on parental allowance effected by the maternity allowance can be treated as ongoing income analogous to a back payment of wages that are due and have been paid (cf. regarding the latter, Federal Social Court (BSG), judgment of May 16, 2012, B 4 AS 154/11 R – regarding the preceding and identical rule in Section 2 Paragraph 3 of the Unemployment Benefit II Ordinance aF).
3. Here, in the current period – the first month of the parental allowance entitlement – the remaining ongoing entitlement was also fulfilled. A statutory provision that would contradict the described procedure, namely the classification of back payments as one-off income, as found in Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) since August 1, 2016, was not in effect for the period in dispute.
Principle (Juris)
1. According to the legal situation in the SGB II applicable until 1 August 2016, a trainee who was in principle entitled to vocational training assistance was also excluded from benefits to secure her livelihood under the SGB II during maternity leave.
2. Under the legal provisions of the German Social Code, Book II (SGB II), which were in effect until August 1, 2016, maternity pay that is offset against parental allowance is considered a one-time advance payment and thus a current income. The allowance applicable to parental allowance must be applied to the maternity pay that is to be offset against parental allowance.
Source: socialcourtsability.de
2.4 – State Social Court of Saxony-Anhalt, Judgment of 27 August 2019 – L 4 AS 343/18
Principle (Juris)
1. If data on apartments in single-family and two-family houses in a rural comparison area characterized by living in such buildings are not collected, there is no conclusive concept for determining reasonable accommodation costs.
2. To ensure the representativeness of the collected data for a concept, the (local) rental housing market must be realistically represented. The data collection must be as similar as possible to it in its composition and in the structure of the relevant characteristics.
3. A flawed sample does not become representative by including a larger number of data values.
4. When determining reasonable heating costs for central hot water preparation, the value for space heating shown in the German Heating Cost Index up to 2013 must be increased by the specified value for hot water preparation.
Source: socialcourtsability.de
2.5 – LSG NRW, judgment of December 5, 2019 – L 7 AS 845/19
Job center pays for sperm freezing for Hartz IV recipients
A man faced the risk of losing his fertility due to a medical treatment – he arranged to have his sperm frozen. The job center must now reimburse the Hartz IV recipient for the costs.
Source: www.welt.de
Note:
SGB II entitlement to costs of cryopreservation
If a benefit recipient is threatened with infertility as a result of chemotherapy, he is entitled to have the costs of cryopreservation of sperm cells covered under the SGB II.
Source: Press release LSG NRW
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Berlin, decision of 21.01.2020 – S 179 AS AS 4920/19 ER, contribution by attorney Kay Füßlein
Once again: the electronic accessibility of the job centers
As has been discussed here several times before, job centers participate in electronic legal transactions, but fail to mention this in their instructions on legal remedies. These instructions are therefore incorrect, and the objection period is one year.
Now the Social Court of Berlin has once again made a decision on this matter (the JobCenter had initially disregarded the suspensive effect of a supposedly late objection; the court then had to decide on the costs of the proceedings).
This legal question is particularly relevant because the Federal Constitutional Court's ruling on sanctions applies to sanction notices that are not yet legally binding (see also here). It is therefore possible that 60% or 100% of sanction notices issued before the Federal Constitutional Court's ruling are not yet legally binding and can thus still be amended.
Source: www.ra-fuesslein.de
3.2 – SG Reutlingen decision of 13.11.2019, S 4 AS 2464/19 ER
Pest control, bed bugs, accommodation costs
Legal principle (Juris):
Costs for pest control in an apartment constitute accommodation costs.
Guiding principle Dr. Manfred Hammel:
The expenses incurred in connection with the implementation of necessary thermal pest control due to bed bug infestation (here: according to the cost estimate EUR 1,200,- plus electricity costs) constitute a need for accommodation within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II.
In the event of a pest infestation during the ongoing tenancy, the elimination of this unlawful condition is an obligation of the respective tenant party to ensure humane living conditions.
Furthermore, timely pest control is in the public interest.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Lower Saxony-Bremen State Social Court, Judgment of 16 January 2020 – L 8 SO 109/18
Regarding the legality of a cost contribution notice
Guiding principle (Editor):
The contested cost contribution notice is already unlawful because the defendant cannot rely on any legal basis for holding the plaintiff liable by administrative act, since Section 92a of the German Social Code, Book XII (SGB XII) does not contain an independent authorization for issuing cost contribution notices (Federal Social Court [BSG], judgment of August 23, 2013 – B 8 SO 17/12 R; Bavarian State Social Court [BSG], judgment of September 24, 2014 – L 8 SO 26/14).
Source: socialcourtsability.de
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – LSG Lower Saxony-Bremen, Judgment of 26 September 2019 (L 8 AY 69/15):
Guiding principle Dr. Manfred Hammel:
Abusive conduct affecting the stay in the federal territory within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not exist if the foreigner's obligation to leave the country could not have been enforced anyway, regardless of their conduct during the entire period from the time of the abuse of rights.
Only conduct that is inexcusable (socially unacceptable) when considering the specific circumstances of the individual case, the situation of the foreigner residing in the Federal Republic of Germany, and the specific characteristics of the Asylum Seekers' Benefits Act (AsylbLG), leads to the exclusion of "analogous benefits".
This applies, for example, to deceptions about one's true identity, but not to entry into the federal territory via a third country considered safe, as this alone does not significantly affect the length of stay.
This is not the case if applications admissible under German residence or asylum procedure law (e.g., an asylum application or an application for a determination of a prohibition of deportation pursuant to Section 60, paragraphs 2 to 7 of the Residence Act) have been submitted. For the assessment of whether conduct constitutes an abuse of rights within the meaning of Section 2, paragraph 1, sentence 1 of the Asylum Seekers' Benefits Act, it is decisive if, after entering the federal territory, the applicant first experienced symptoms of post-traumatic stress disorder (PTSD), which was subsequently diagnosed without doubt. This necessitated specialist medical treatment financed by the authorities (Sections 4 and 6 of the Asylum Seekers' Benefits Act), and consequently, the applicant was significantly impaired in their ability to adequately fulfill their obligations to cooperate under immigration law.
5.2 – LSG Lower Saxony-Bremen, decision of 16 January 2020 (L 8 AY 22/19 B ER):
Guiding principle Dr. Manfred Hammel:
The refusal of a person entitled to benefits under Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act (AsylbLG) to submit a declaration stating that a voluntary return to their home country is intended does not meet the requirements for the application of Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
The regulatory authority cannot demand such a declaration of voluntariness from the applicant against his will.
Against this background, a sanction under social security law for the failure to submit this statement pursuant to Section 60b Paragraph 3 Sentence 1 No. 3 of the Residence Act is not justified.
A corresponding omission constitutes a reason attributable to the applicant himself within the meaning of Section 1a Paragraph 3 Sentence 1 AsylbLG or Section 2 Paragraph 1 Sentence 1 AsylbLG only if the person concerned was expressly informed of such an obligation by the regulatory authority in accordance with Section 60b Paragraph 3 Sentence 2 AufenthG.
5.3 – Social Court Landshut, decision of 23 January 2020 – S 11 AY 79/19 ER
Restriction of entitlement pursuant to Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) – entitlement to standard benefit level 1 in communal accommodation
Teleological reduction of the restriction of entitlement under the Asylum Seekers' Benefits Act in preliminary legal protection
Guiding principle (Editor)
1. The entitlement to benefits cannot currently be restricted pursuant to Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG); the decision of December 16, 2019 is unlawful.
2. The Chamber considers a teleological reduction of Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) to be necessary. A teleological reduction is characterized by the fact that a provision, contrary to its wording, does not apply to some of the cases it covers because the purpose, legislative history, and overall context of the relevant regulations argue against its unrestricted application.
3. Apparently, the applicant was sanctioned for submitting an inadmissible asylum application in Germany. However, the application itself does not constitute misconduct. Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) requires sufficient specificity regarding the breach of duty. The administrative act must clearly state which specific, current breach of duty forms the basis for the benefit reduction pursuant to Section 1a, Paragraph 7, Sentence 1 of the AsylbLG. Section 14, Paragraph 2 of the AsylbLG stipulates that the authority must conduct a new review no later than six months after the initial application.
4. The application of standard benefit level 2 requires actual joint financial management by the persons accommodated with the applicant, because joint financial management appears at least more likely in family relationships; less so, however, in joint accommodation with strangers, therefore the applicant is entitled to standard benefit level 1.
Principle (Juris)
1. For the restriction of entitlement under Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG), it is required, by way of a norm-preserving, teleological reduction, that the benefit recipient can currently be accused of conduct contrary to their obligations. (Paragraphs 26-28) (Editorial principle)
2. The administrative act establishing the facts must clearly state which specific, current breach of duty forms the basis for the reduction of benefits pursuant to Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG). (Paragraph 29) (Editorial note)
3. The application of standard benefit level 2 (see Section 3a Paragraph 1 No. 2b, Paragraph 2 No. 2b AsylbLG) requires actual joint financial management by the persons accommodated with the applicant. (Paragraphs 38-39) (Editorial note)
Source: socialcourtsability.de
Note:
Benefit notices are often incorrect or unconstitutional. File an objection and, if necessary, submit an urgent application and a lawsuit!
More information: www.nds-fluerat.org
5.4 – Social Court Landshut, decision of 28 January 2020 – S 11 AY 3/20 ER
Restriction of entitlement pursuant to Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) – entitlement to standard benefit level 1 in communal accommodation
Guiding principle (Editor):
The application of standard benefit level 2 requires actual joint financial management by the persons accommodated with the applicant, because joint financial management appears at least more likely in family relationships; less so, however, in joint accommodation with unrelated persons, therefore the applicant is entitled to standard benefit level 1.
Source: socialcourtsability.de
5.5 – Freiburg Social Court, decision of January 20, 2020 (S 7 AY 5235/19 ER):
Guiding principle by Dr. Manfred Hammel:
Constitutional concerns regarding Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) under the aspect of the fundamental right to a dignified minimum standard of living guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 of the Basic Law (GG), as well as with regard to the general principle of equality under Article 3 Paragraph 1 of the Basic Law (GG).
There is a lack of a reliable empirical basis for the blanket assumption made by the legislator in Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) that a person entitled to benefits under Section 1 Paragraph 1 of the AsylbLG and housed in communal accommodation pursuant to Section 53 Paragraph 1 of the Asylum Act (AsylG) generally incurs lower everyday expenses than social benefit recipients who already live in individual accommodation, regardless of the type, size, layout and furnishings.
Furthermore, there is no objective justification for unequal treatment of persons entitled to benefits under Section 1 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) here and recipients of benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII) there, whose housing situation corresponds to that of accommodation in a communal facility.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Note on: BSG 14th Senate, Judgment of 11 July 2019 – B 14 AS 44/18 R
Author: Dr. Stefan Meißner
Publication date: January 30, 2020
Guiding principle:
The calculation of a monthly average income for the final decision is independent of the reason for the provisional nature of the decision, encompasses all types of income and all months of the approval period.
Guiding principle for the comment:
When making the final determination of the entitlement to benefits, an average income must also be calculated if the reason for the preliminary decision was not fluctuating income.
Continue on Juris
6.2 – Social Law – Justice January 2020
Provisional benefit approvals under the German Social Code, Book II (SGB II) – on the recent case law of the Federal Social Court and the differing administrative practice of the job centers
More information: sozialrecht-justament.de
6.3 – Kiel Regional Court: Legal aid: Fee for a successful review application pursuant to Section 44 of the German Social Code, Book X
Legal aid: Processing fee for a successful review application according to § 44 SGB X!
The Kiel Regional Court, in its decision of January 24, 2020, under file number 5 T 53/19, confirmed the decision of the Kiel Local Court, according to which the settlement fee pursuant to No. 1002 of the RVG Fee Schedule in conjunction with No. 2508 (1) of the RVG Fee Schedule arises for a successful review procedure pursuant to Section 44 of the German Social Code, Book X.
See also on this topic: Legal aid: Processing fee for a successful review application?
6.4 – Housing benefit is to be offset against ALG II in the month it is received, a contribution by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
6.5 – Against Hartz IV Sanctions: The New Wave of Lawsuits in Germany
The SPD wants to phase out Hartz IV with its "Social State Concept 2025". However, lawsuits against job center sanctions are piling up in the social courts.
Example: SG Altenburg in Thuringia
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
