1. Decisions of the Federal Social Court on basic security according to (SGB II)
1.1 – BSG, judgment of 08/29/2019 – B 14 AS 42/18 R
Payments from residual debt insurance are not creditable income within the meaning of Section 11 SGB II
Guidance sentence (editor)
1. The payment of the insurance into the spouses' loan account is not to be viewed as income to be taken into account according to Section 11 SGB II, because this payment does not come from the spouses' ready resources and the previously debited loan installment is not returned by the bank to the current account did not lead to (further) income for the spouses.
2. The payment of the insurance benefit into the loan account was not based on an insignificant usage decision by the spouses (see BSG of April 29, 2015 - B 14 AS 10/14 R - (current account agreement); BSG of May 24, 2017 - B 14 AS 32/16 R - (Employer loan for motor vehicles)). The payment did not result in income that the spouses could use freely.
Source: socialcourtsability.de
1.2 – BSG, judgment of 08/29/2019 – B 14 AS 50/18 R
Giving up your job abroad before moving back to Germany is not socially disadvantageous
Orientation sentence (editor)
1. § 34 SGB II is based on the exception regulation of § 92a BSHG and requires behavior that is to be disapproved according to the evaluations of SGB II (see only BSG of April 16, 2013 - B 14 AS 55/12 R).
2. This does not apply if a German citizen gives up employment abroad and moves to Germany with her children without first trying to find a livelihood in the federal territory. Nothing else can apply to the plaintiff as a husband and father based on Article 6 Paragraphs 1 and 2 of the Basic Law.
Source: socialcourtsability.de
Note:
Giving up your job abroad before moving back to Germany is not socially disadvantageous, a contribution from attorney Helge Hildebrandt
further: Sozialberatung-kiel.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, judgment of November 21, 2019 – L 34 AS 801/19
Basic security for job seekers - income consideration - the food provided by the employer as a benefit in kind is taken into account even if it is not used
Company catering is to be deducted from income at a flat rate.
Guidance sentence (editor)
Income “in monetary value” is income that does not exist directly in cash or book money, but has an economic value that can be measured in money. This includes, among other things, non-cash income including vouchers, collectible coins, services or benefits in kind, in particular free accommodation or meals, contributions and employee discounts.
Since January 1, 2009, the monetary value of the meals provided by the employer to be taken into account as income within the meaning of Section 11 Paragraph 1 SGB II has been based on Section 2 Paragraph 5 Alg II-V. Accordingly, when calculating income, the value of the full board provided by the employer must be taken as 1% of the standard monthly requirement in accordance with Section 20 SGB II. If partial catering is provided, breakfast will account for 20% and lunch and dinner will account for 40% each of the amount resulting from sentence 1.
Section 2 Paragraph 5 ALG-II-VO does not unlawfully interfere with the right of self-determination of those entitled to benefits. If a person entitled to benefits sees their decision to follow a certain diet as being impaired by the food provided by the employer, it is their responsibility to waive their corresponding entitlement in their employment contract or to waive it to the employer (also SG Stuttgart, judgment of March 28, 2019 – S 12 AS 4117/18).
Note:
aA.: SG Berlin from March 23, 2015 - S 175 AS 15482/14
Guiding principle (Juris)
1. Meals provided free of charge by the employer during working hours are income in the sense of:
S.d. § 11 Para. 1 Sentence 2 SGB II. For the inflow of this income and the calculation according to § 2 Para. 5 Alg-II-V, it is irrelevant whether the meals provided by the employer are actually used.
2. Section 2 paragraph 5 Alg II-V is legal.
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, judgment of 08/24/2019 – L 25 AS 1831/18
Guidance sentence (editor)
Greek citizens are entitled to ALG II because the BSG has decided that Section 2 Paragraph 3 Sentence 1 No. 2 FreizügG/EU does not require uninterrupted activity of more than one year. Activities interrupted by unemployment can also meet the legal requirement (see judgment of July 13, 2017 - B 4 AS 17/16 R).
Guiding principle (Juris)
1) If the beneficiary reaches a period of employment of more than one year in approximately 18 months, the requirements for continued employee status are met.
2) To the extent that the Federal Employment Agency has stipulated in its technical instructions that an interruption is generally only short if it does not amount to more than 5 percent in relation to the duration of employment, this is not supported either in law or in case law .
Source: socialcourtsability.de
2.3 – Berlin-Brandenburg State Social Court, judgment of December 17, 2019 – L 25 AS 535/19
subletting; rental agreement between family members; Contract at the expense of third parties/job centers
Guidance sentence (editor)
Regarding the consideration of the subrent to be paid by him instead of calculating his share of the rent according to the so-called head part principle, rejected here, because a serious demand for rent would be a prerequisite for deviating from the so-called head part principle, but this is not the case here.
Guiding principle (Juris)
1) A contract to the detriment of third parties does not mean a contract that is invalid under the rules of civil law in terms of basic security law. The term describes the constellation in which the rent claim is not to be enforced against the tenant, but solely against the job center. In this case, there is no need for basic security law.
2) Strict requirements must be met for proof of a binding rental agreement between family members who use the same apartment if there is a suspicion of abuse to circumvent requests to reduce costs.
3) On the actual circumstances that justify the acceptance of a contract to the detriment of the job center
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, judgment of 12/12/2019 – L 31 AS 302/17
halfway house; framework agreement; compensation agreement; Triangular relationship between service provider, job center and social welfare provider; fulfillment effect; public law contract
Guiding principle (Juris)
1. The basis for the claim for the remuneration of the “transitional house” benefit in kind is the approval notice to the home resident as an administrative act with third-party effect in conjunction with the framework and remuneration agreement in accordance with Sections 75, 79 SGB XII (connection to BSG, judgment of October 28th 2008, B 8 SO 22/07 R).
2. Against the background of the resulting assumption of guilt, it remains irrelevant what payment amount the social welfare provider included in the approval notice in deviation from the remuneration contract. The assumption of guilt is linked to the provision of the benefit in kind.
3. A contract concluded by the social welfare agency with the job centers regarding the division of remuneration remains legally meaningless for the service provider who is not involved because it would have required the consent of the service provider.
The fulfillment effect of the payments made by the job center to the service provider in favor of the social welfare office does not arise from Section 107 SGB
Source: socialcourtsability.de
2.5 – LSG NRW, judgment of November 7, 2019 – L 19 AS 1204/18
No SGB II subsidy for parties' holiday camps
The LSG Essen has decided that a summer camp run by the MLPD youth organization Rebell/Rotfüchse is not eligible for funding as a service for social and cultural participation.
Rebel is the youth association of the Marxist-Leninist Party of Germany (MLPD). The children's organization “Rotfüchse”, which children from the age of six can join, is affiliated with Rebel. SGB II recipients who took part in the 2016 summer camp had sued for the subsidy.
The LSG Essen has rejected a subsidy.
further: www.juris.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – SG Düsseldorf, judgment of January 8, 2019 – S 37 AS 3080/19
Deposit bottle collector is entitled to Harz IV
The SG Düsseldorf has decided that a 53-year-old who stated that she kept herself afloat by collecting deposit bottles will receive Harz IV.
Guidance sentence (editor)
In the Chamber's opinion, overcompensation for proceeds of EUR 100 per month from collecting returnable bottles does not occur ((also LSG FSB judgment of March 21, 2019 Ref. L 7 AS 114/16, where within the framework of § 11 Paragraph 4 SGB II EUR 200 payments from the Caritas Association as part of a project with mentally ill people represents privileged income)
Source: socialcourtsability.de
3.2 - SG Berlin, court decision of February 11, 2020 - S 34 AS 11717/18
To credit food vouchers after a reduction notice has been revoked
Guidance sentence (editor)
No crediting of the value of the vouchers if the sanction notices are revoked alone (BSG, judgment of October 12, 2017 - B 4 AS 34/16 R).
Full text from RA Heemann, Dresden
4. Decisions of the state social courts and social courts on social assistance (SGB XII)
4.1 – Schleswig-Holstein State Social Court, judgment of 09/25/2019 – L 9 SUN 8/16
Covering funeral costs
Guidance sentence (editor)
1. Regarding the assumption of costs for the funeral of the plaintiff's deceased father, here partially affirmative.
2. It is unreasonable for the plaintiff to assume the costs for economic reasons (Section 19 Para. 3 SGB XII).
Guiding Principle (Juris)
A reference to those with priority obligations that excludes entitlement can only be considered if, at the time when the need arises, the existence and identity of a priority obligation has already been definitively and irrevocably established.
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Osnabrück Social Court, decision v. 01/27/2020 – S 44 AY 76/19 ER
Benefit cuts according to Section 1a AsylbLG
Orientation sentence (editor)
1. § 1a AsylbLG is compatible with the Basic Law (contrary to LSG Niedersachsen-Bremen (decision of December 4, 2019, L 8 AY 36/19 B ER - doubts about the constitutionality of benefit cuts according to the AsylbLG).
2. With regard to the amount of the benefit reduction, the Chamber considers the wording to be clear, so that a constitutional interpretation is ruled out. In the Chamber's opinion, it is not possible to transfer the BVerfG's considerations from the BVerfG's decision of November 5, 2019, 1 BvL 7/16.
Guiding principle (Juris)
1. The reduction in benefits according to Section 1a Paragraph 7 AsylbLG after the Federal Office's inadmissibility decision according to Section 29 Paragraph 1 No. 1 AsylG (rejection of an asylum application as inadmissible because another state is responsible for carrying out the asylum procedure) is the reason according to not unconstitutional.
2. It is not possible in the current situation to transfer the Federal Constitutional Court's statements on the lack of proof of the suitability of higher sanctions for the purpose of reintegration into work in SGB II in its decision of November 5, 2019 (1 BvL 7/16) to Section 1a AsylbLG.
3. Section 1a Paragraph 7 AsylbLG cannot be interpreted in accordance with the constitution because of its clear wording. The transitional regulation of the BVerfG to SGB II (1 BvL 7/16) cannot be applied analogously. It is not possible to extend the legal force of the decision of the BVerfG (1 BvL 7/16) to Section 1a AsylbLG. A teleological reduction of Section 1a AsylbLG is also ruled out.
Source: socialcourtsability.de
6. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
6.1 - The changes to the AsylbLG through the “Ordered Return Act” - Lange, jurisPR-SozR 3/2020 Note 1 - February 13, 2020
further: www.juris.de
6.2 - OLG Celle: Grandma saves for grandchildren: Reclaiming a gift if the donor is in need of care
The OLG Celle has decided that regular payments to family members to build up capital can be reclaimed if the donor himself is in need.
The claim for repayment is transferred to social welfare providers if they do so
provide services, according to the Higher Regional Court.
OLG Celle, judgment of 02/13/2020 – 6 U 76/19
6.3 – Discretion from a constitutional perspective, a contribution by Herbert Masslau
In December 2019, the Federal Constitutional Court (BVerfG) declared the submission of the Mainz Social Court, among other things, on the question of the unconstitutionality of Section 7 Paragraph 1 SGB II (foreigners exception to the “Hartz IV” benefit) to be inadmissible. The BVerfG accused the SG Mainz of not having met the requirement to provide reasons.
At this point, however, the subject of consideration is not Section 7 SGB II in connection with the right of residence, but rather an aspect also brought up by the BVerfG.
What is interesting in general is the BVerfG's further accusation against the SG Mainz that it "misunderstands the constitutional starting points". Specifically, the following is said on the subject of discretion:
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
