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 42/18 R
Payments from residual debt insurance are not considered income within the meaning of Section 11 of the German Social Code, Book II (SGB II)
Guiding principle (Editor)
1. The payment of the insurance to the loan account of the spouses is not to be regarded as income to be taken into account pursuant to Section 11 of the German Social Code, Book II (SGB II), because this payment did not result in readily available funds for the spouses and the reversal of the previously debited loan installment by the bank to the current account did not lead to any (further) income for the spouses.
2. The payment of the insurance benefit into the loan account was not based on an irrelevant decision by the spouses regarding its use (cf. Federal Social Court [BSG] judgment of April 29, 2015 – B 14 AS 10/14 R – (current account agreement); Federal Social Court [BSG] judgment of May 24, 2017 – B 14 AS 32/16 R – (employer loan for motor vehicle)). This is because the payment did not result in income over which the spouses had free disposal.
Source: socialcourtsability.de
1.2 – BSG, judgment of 08/29/2019 – B 14 AS 50/18 R
Leaving a job abroad before returning to Germany is not socially unacceptable
Guiding principle (Editor)
1. Section 34 of the German Social Code, Book II (SGB II) is linked to the exception provision of Section 92a of the Federal Social Assistance Act (BSHG) and requires conduct that is reprehensible according to the values of the SGB II (see only BSG of 16 April 2013 – B 14 AS 55/12 R).
2. Such a situation does not exist if a German citizen gives up employment abroad and moves to Germany with her children without having previously sought a livelihood within the federal territory. The same applies to the plaintiff as husband and father, pursuant to Article 6, paragraphs 1 and 2 of the Basic Law.
Source: socialcourtsability.de
Note:
Leaving a job abroad before returning to Germany is not socially unacceptable, an article by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, Judgment of 21 November 2019 – L 34 AS 801/19
Basic income support for job seekers – consideration of income – crediting of meals provided by the employer as a benefit in kind, even if not used
Company meals are to be included in the income calculation as a lump sum.
Guiding principle (Editor):
Income "in monetary value" refers to income that does not consist directly of cash or bank deposits, but has an economic value that can be measured in monetary terms. This includes, among other things, income in kind, including vouchers, collectible coins, services or benefits in kind, in particular free accommodation or meals, allowances, and employee discounts.
Since January 1, 2009, the monetary value of employer-provided meals, which is to be considered as income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), is governed by Section 2 Paragraph 5 of the German Regulation on Unemployment Benefit II (Alg II-V). Accordingly, when calculating income, the value of full board provided by the employer is to be set at 1% per day of the standard monthly allowance applicable under Section 20 of the SGB II. If partial board is provided, 20% is allocated to breakfast, and 40% each to lunch and dinner, based on the amount calculated according to the first sentence.
Section 2, paragraph 5 of the ALG-II-VO (Regulation on Unemployment Benefit II) does not unlawfully infringe upon the right to self-determination of benefit recipients. If a benefit recipient feels that the meals provided by their employer impair their decision regarding a particular diet, it is their responsibility to contractually waive their corresponding entitlement or to waive it vis-à-vis the employer (see also Stuttgart Social Court, judgment of March 28, 2019 – S 12 AS 4117/18).
Note:
aA.: SG Berlin of 23 March 2015 – S 175 AS 15482/14
Principle (Juris)
1. Meals provided free of charge by the employer during working hours constitute income within the meaning of Section 11 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II).
For the purposes of determining whether this income is received and calculating it according to Section 2 Paragraph 5 of the German Regulation on Unemployment Benefit II (Alg-II-V), it is irrelevant whether the meals provided by the employer are actually consumed.
2. Section 2 paragraph 5 of the Alg II-V is lawful.
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 24 August 2019 – L 25 AS 1831/18
Guiding principle (Editor):
A Greek citizen is entitled to ALG II (unemployment benefit II), because the Federal Social Court (BSG) has ruled that Section 2 Paragraph 3 Sentence 1 No. 2 of the Freedom of Movement Act/EU does not require uninterrupted employment of more than one year. Employment interrupted by periods of unemployment can also fulfill the legal requirement (see judgment of July 13, 2017 – B 4 AS 17/16 R).
Principle (Juris)
1) If the person entitled to the claim achieves a period of employment of more than one year in approximately 18 months, the conditions for the continued existence of employee status are met.
2) Insofar as the Federal Employment Agency has stipulated in its technical instructions that an interruption is generally only short if it does not exceed 5 percent in relation to the duration of employment, this finds no support in either the law or case law.
Source: socialcourtsability.de
2.3 – Berlin-Brandenburg State Social Court, Judgment of 17 December 2019 – L 25 AS 535/19
Subletting; tenancy agreement between family members; contract to the detriment of third parties/job center
Guiding principle (Editor):
Regarding the consideration of the sublet he has to pay instead of calculating his share of the rent according to the so-called head principle, rejected here, because a serious demand for rent would be a prerequisite to deviate from the so-called head principle, but this is not the case here.
Principle (Juris)
1) For the purposes of basic income support law, a contract to the detriment of a third party does not refer to a contract that is invalid under the rules of civil law. The term describes the situation in which the rent claim is to be enforced not against the tenant, but solely against the job center. In this case, there is no need for basic income support.
2) Strict requirements must be placed on the proof of a binding tenancy agreement between family members who use the same apartment, at least when there is a suspicion of abuse to circumvent cost-reduction requests.
3) Regarding the actual circumstances that justify the assumption of a contract to the detriment of the job center
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, Judgment of 12 December 2019 – L 31 AS 302/17
Transitional housing; framework agreement; remuneration agreement; triangular relationship between service provider, job center, and social welfare agency; fulfillment effect; public-law contract
Principle (Juris)
1. The legal basis for the remuneration of the in-kind benefit “transitional house” is the notice of approval to the resident as an administrative act with third-party effect in conjunction with the framework and remuneration agreement pursuant to Sections 75, 79 SGB XII (following BSG, judgment of October 28, 2008, B 8 SO 22/07 R).
2. In light of the resulting assumption of debt, the amount of payment included in the grant notice by the social welfare agency, deviating from the remuneration agreement, is irrelevant. The assumption of debt is contingent upon the provision of the benefit in kind.
3. A contract concluded between the social welfare agency and the job centers regarding the division of remuneration remains legally meaningless with respect to the non-participating service provider, because it would have required the service provider's consent.
The fulfillment of the obligations of the social welfare office by payments made by the job center to the service provider does not arise from Section 107 of the German Social Code, Book X (SGB X), due to the lack of the necessary conditions, but rather results from the legal principle codified in Section 267 of the German Civil Code (BGB), provided its conditions are met analogously.
Source: socialcourtsability.de
2.5 – LSG NRW, judgment of November 7, 2019 – L 19 AS 1204/18
No SGB II subsidy for holiday camps organized by political parties.
The LSG Essen has ruled that a summer camp organized by the MLPD youth organization Rebell/Rotfüchse is not eligible for funding as a service for social and cultural participation.
Rebell is the youth organization of the Marxist-Leninist Party of Germany (MLPD). Affiliated with Rebell is the children's organization "Rotfüchse" (Red Foxes), which children from the age of six can join. Those receiving social welfare benefits (SGB II) who participated in the 2016 summer camp filed a lawsuit seeking subsidies.
The LSG Essen rejected a subsidy.
Further information: www.juris.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Düsseldorf, judgment of January 8, 2019 – S 37 AS 3080/19
Bottle collector entitled to Hartz IV benefits.
The Düsseldorf Social Court has ruled that a 53-year-old woman who stated that she supported herself by collecting deposit bottles is entitled to Hartz IV benefits.
Guiding principle (Editor):
In the Chamber's opinion, overcompensation does not occur with monthly proceeds of €100 from collecting deposit bottles (see also LSG FSB judgment of 21.03.2019, file no. L 7 AS 114/16, where, within the framework of § 11 para. 4 SGB II, payments of €200 from the Caritas Association within the framework of a project with mentally ill people constitute privileged income).
Source: socialcourtsability.de
3.2 – SG Berlin, Judgment of 11.02.2020 – S 34 AS 11717/18
Regarding the crediting of food vouchers after the cancellation of a reduction notice
Guiding principle (Editor):
The value of the vouchers is not to be taken into account when only the sanction notices are revoked (Federal Social Court, judgment of 12 October 2017 – B 4 AS 34/16 R).
Full text available from the law firm of 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 25 September 2019 – L 9 SO 8/16
Funeral cost coverage
Guiding principle (Editor)
1. Regarding the assumption of costs for the funeral of the plaintiff's deceased father, partially affirmed here.
2. The plaintiff cannot reasonably be expected to bear the costs for economic reasons alone (§ 19 para. 3 SGB XII).
Principle (Juris)
: A reference to prior debtors that excludes entitlement to compensation can only be considered if, at the time the need arises, the existence and identity of a prior debtor is already definitively and irrevocably established.
Source: socialcourtsability.de
5. Decisions of the social courts on asylum law
5.1 – Osnabrück Social Court, decision of 27 January 2020 – S 44 AY 76/19 ER
Benefit reductions according to § 1a AsylbLG
Guiding principle (Editor)
1. Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is compatible with the Basic Law (contrary to the decision of the Lower Saxony-Bremen Social Court (decision of 04.12.2019, L 8 AY 36/19 B ER – doubts about the constitutionality of benefit reductions under the Asylum Seekers' Benefits Act)).
2. Regarding the amount of the benefit reduction, the Chamber considers the wording to be unambiguous, so that a constitutionally compliant interpretation is precluded. Furthermore, in the Chamber's view, it is not possible to apply the considerations of the Federal Constitutional Court from its decision of November 5, 2019, 1 BvL 7/16.
Principle (Juris)
1. The reduction of benefits pursuant to Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) following an inadmissibility decision by the Federal Office pursuant to Section 29 Paragraph 1 No. 1 of the Asylum Act (rejection of an asylum application as inadmissible due to the responsibility of another state for conducting the asylum procedure) is not unconstitutional in principle.
2. In the current situation, it is not possible to apply the statements of the Federal Constitutional Court regarding the lack of proof of the suitability of higher sanctions for the purpose of reintegration into work under the German Social Code, Book II (SGB II), in its decision of November 5, 2019 (1 BvL 7/16) to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
3. Section 1a, paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) cannot be interpreted in a manner consistent with the constitution due to its clear wording. The transitional provision of the Federal Constitutional Court regarding the Social Code, Book II (SGB II) (1 BvL 7/16) cannot be applied analogously. Extending the legal force of the Federal Constitutional Court's decision (1 BvL 7/16) to Section 1a of the AsylbLG is not possible. A teleological reduction of Section 1a of the AsylbLG is also precluded.
Source: socialcourtsability.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – The amendments to the Asylum Seekers' Benefits Act (AsylbLG) through the “Orderly Return Act” – Lange, jurisPR-SozR 3/2020 Note 1 – 13.02.2020
Further information: www.juris.de
6.2 – OLG Celle: Grandma saves for grandchild: Recovery of a gift if the donor is in need of care.
The OLG Celle has ruled that regular payments to family members for the purpose of building up capital can be reclaimed if the donor himself is in need.
The right to reimbursement is transferred to the social welfare provider if this
The Higher Regional Court stated that the services provided were being rendered.
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 inadmissible the submission by the Mainz Social Court, among other things, regarding the constitutionality of Section 7 Paragraph 1 of the German Social Code, Book II (SGB II) (exemption of foreigners from receiving "Hartz IV" benefits). The BVerfG accused the Mainz Social Court of failing to meet the requirement to provide reasons for its decision.
However, the focus here will not be on Section 7 of the German Social Code, Book II (SGB II) in connection with the right of residence, but rather on an aspect also raised by the Federal Constitutional Court.
Of particular interest, therefore, is the Federal Constitutional Court's further accusation against the Mainz Social Court that it misunderstands "the constitutional starting points." Specifically, regarding the issue of discretion, the Court states:
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
