1. Decisions of the Federal Social Court on basic security according to (SGB II)
1.1 – BSG, judgment of October 30, 2019 – B 4 KG 1/19 R
Guidance (Editor)
In contrast to the additional child allowance paid, there is no exception to be made for back-paid housing benefit from being taken into account in the month of accrual.
Source: socialcourtsability.de
1.2 – BSG, judgment of August 29, 2019 – B 14 AS 49/18 R
Unemployment benefit II after termination of training
Orientation aid (editor)
Aid recipient breaks off training - The job center is therefore not allowed to reclaim all unemployment benefit II payments.
Source: socialcourtsability.de
1.3 – BSG, judgment of 02/20/2020 – B 14 AS 52/18 R
No fictitious consideration of assets when offsetting assets against debts (or overdrafts)
Guidance (editor)
1. In contrast to the consideration of income (see Section 11 Paragraph 2, 3 SGB II), there is no normative basis for a monthly principle when taking assets into account in SGB II, so that benefits can also be provided from the middle of the month or when the need for help arises can be granted.
Source: www.bsg.bund.de
Note:
First pay your debts and then apply for Hartz IV
Assets only stand in the way of an approval of Hartz IV benefits if they are higher than the respective individual exemption amount on the day of the application. Unlike the crediting of income, benefits can also be approved in the middle of the month, as the Federal Social Court (BSG) in Kassel decided on Thursday. Specifically, the plaintiff was allowed to use assets to pay off debts immediately before his application. (Az: B 14 AS 52/18 R).
1.4 – BSG, judgments of 02/20/2020 – B 14 AS 17/19 R, B 14 AS 4/19 R, B 14 AS 3/19 R
Orientation aid Attorney Kay Füßlein, Berlin
“There is a general ban on offsetting legal claims for reimbursement of costs against claims from line recipients”
Background information: Note from Attorney Kay Füßlein:
In the event of a successful objection or legal proceedings, the JobCenter has to cover the legal fees. However, many ALG II recipients usually have “old debts” (loans due to rental deposits or overpayments) at the JobCenter. Some JobCenters had therefore started to declare offsetting against such “debts”, so that the legal representative from the JobCenter received no money, while their own clients are destitute and collection is unlikely or generally hopeless.
Through these rulings, the BSG has decided that – at least in the area of SGB II – there is a general ban on offsetting. In this way, it strengthens the rights of ALG II recipients and their lawyers, who will no longer “look into the tube” in the future despite winning cases.
Source:
Negotiation B 14 AS 3/19 R
Negotiation B 14 AS 4/19 R
Negotiation B 14 AS 17/19 R
Note:
S.a. in addition: BSG on reimbursement of costs after a successful objection - job centers are no longer allowed to set off against lawyers
BSG for reimbursement of costs after a successful objection
Job centers are no longer allowed to set off against lawyers
by Annelie Kaufmann
Objection proceedings won, but left with the costs: Up to now, this could easily happen to lawyers who represent Hartz IV recipients.
The BSG is ending a controversial job center practice. www.lto.de
and
Lawyers have to get their money from the job center.
Stefan Sell's “typically poor” Hartz IV recipients
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of November 20, 2019 – L 18 AS 947/17
Assurance – under 25 year olds – constitutional interpretation – receipt of benefits
Guidance (editor)
1. This reservation of assurance cannot apply if it is predicted that the young adult will be able to support himself after moving out of his parents' home regardless of the basic security provider.
2. The interpretation of Section 22 Paragraph 5 Sentence 1 SGB II required in this way also arises from constitutional considerations.
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, judgment of January 14, 2020 – L 25 AS 1435/19
Basic security for job seekers; Social care; EU foreigners; right of residence to look for work; EFA; discretionary reduction; Consolidation of the actual stay
Guiding principle (Juris)
The exclusion of benefits according to Section 23 Paragraph 3 Sentence 1 2nd Alternative SGB XII old version does not lead to the exclusion of discretionary benefits according to Section 23 Paragraph 1 Sentence 3 SGB XII. In this context, the case law of the BSG clarifies that a reduction in discretion comes into consideration if and because the stay of EU foreigners has become so established after six months of actual stay in Germany, which is actually tolerated by the immigration authorities, that the provision of subsistence benefits only in individual cases no longer meets the constitutional requirements.
Source: socialcourtsability.de
2.3 – Berlin-Brandenburg State Social Court, judgment of January 22, 2020 – L 18 AS 1312/17
unemployment benefit II; inflow of income; Additional payment; seizure protection account; cancellation and reimbursement; bad faith; community of need
Guidance (editor)
1. When calculating income, the JobCenter correctly also took into account the seized parts of the additional payment transferred. These are also income within the meaning of Section 11 Paragraph 1 Sentence 1 SGB II.
2. As part of his obligation to help himself according to Section 2 Paragraph 1 Sentence 2 SGB II, the plaintiff could easily be expected to work towards reversing the (illegal) seizure of €500.
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision v. January 9, 2020 – L 10 AS 2103/19 NZB – legally binding
Guidance (editor)
1. The Senate does not follow the opinion of the LSG Saxony-Anhalt (decision of April 18, 2017 - L 4 AS 160/17 B, juris RdNr 16f), according to which the sought-after assurance is included in the event of a move to the target apartment the later approval of benefits is so closely economically linked that the assurance itself must be viewed as being “directed” to a cash benefit and according to which, in order to determine the value of the appeal, the rents of the old, still inhabited apartment and the target apartment are based on the duration of an approval phase (according to Section 41 Paragraph 3 Sentence 1 SGB II in the version in force since August 1, 2016 (usually one year) must be compared.
2. This determination of the time frame has no basis that can be derived directly from the law; As far as can be seen, no groups of cases are discussed in which an otherwise incalculable complaint value is fixed using a freely estimated period of time.
Source: socialcourtsability.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 - 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 from the law firm RA Heemann
1.) The issuance of food vouchers as a benefit in kind in the event of a sanction represents the issuance of independent administrative acts, so that if the sanction is withdrawn, the value of the vouchers cannot be offset against the payment entitlement as long as these administrative acts are effective ( BSG, judgment of October 12, 2017 – B 4 AS 34/16 R).
2.) However, simply revoking the vouchers or the approval notices underlying their issuance in the event of additional payment of the reduction amount does not mean that the amount corresponding to the vouchers may be withheld by the job center. Apart from Section 43 SGB II, there is no room for a direct “simple” counter-calculation.
3.) In particular, the right to payment has not expired through fulfillment in accordance with Section 362 of the German Civil Code (BGB). Due to the illegality of the reduction, the service owed was not the provision of benefits in kind, but rather the payment of the approved amount. If the creditor provides a service other than that owed, there will be no fulfillment.
4.) Expiry of the claim through acceptance in lieu of performance in accordance with Section 364 of the German Civil Code (BGB) is also not an option. The prerequisite for performance in lieu of fulfillment is the existence of a corresponding contractual agreement between those involved. (This will regularly be missing. Because neither the beneficiary nor the job center assumes at the time the vouchers are issued that this is to fulfill the job center's obligation to pay out ongoing benefits in accordance with SGB II after the reduction has been lifted.)
3.2 – SG Berlin, judgment by January 31, 2020 – S 37 AS 13932/16
Sanction for missing an appointment, a contribution from Attorney Volker Gerloff, Berlin
As is well known, a sanction may only be imposed if sufficient legal consequences have been given in writing beforehand. What such instruction must contain is still partly controversial today.
Now I have received a recent decision that strengthens a view that many colleagues and I have held for a long time:
The legal consequences must also point out that the appointment is not considered missed if you contact the JobCenter in person on the same day. If the appointment was on February 3rd, 2020 at 8:00 a.m. and the person concerned went to the JobCenter on February 3rd, 2020 at 4:00 p.m. to make up the appointment, then there was no failure. This is regulated by Section 309 Paragraph 3 Sentence 2 SGB III, which is applicable here. If this is not pointed out, then the instruction is insufficient = a sanction would be unlawful.
current decision: SG Berlin, judgment of January 31, 2020 - S 37 AS 13932/16
previous decision: SG Leipzig, decision of September 9, 2016 - S 22 AS 2098/16 ER
Sanctions for failure to report should always be attacked using this argument.
Source: www.facebook.com
Guidance (editor)
1. The provisions of Section 309 Paragraph 3 Sentence 2 SGB III must be provided in the legal consequences instruction.
2. The instance case law that conflicts with the SG Leipzig can no longer be convincing after the BVerfG ruling of November 5, 2019.
3. The reference in Section 309 Paragraph 3 Sentence 2 SGB III offers the opportunity to demonstrate law-abiding behavior, which, according to the standards of the BVerfG ruling, excludes the imposition of a sanction. The note is therefore of central importance for old cases in which it is not yet necessary to draw attention to the shortening of the sanction period when a declaration of behavior reversal is made, as was the case with the technical information from December 3, 2019.
Editor's note:
Contrary to older case law, SG Karlsruhe, judgment of August 30, 2017 - S 11 AS 222/17; SG Munich, decision by. July 12, 2017 – S 40 AS 1532/17 ER
4. Decisions of the state social courts on employment promotion law (SGB III)
4.1 – Baden-Württemberg State Social Court, judgment of 01/22/2020 – L 3 AL 2225/19
The determination of a suspension of the entitlement to unemployment benefit due to a blocking period due to a dismissal abroad does not violate Article 3 Paragraph 1 of the Basic Law.
Guidance (editor)
1. It is not excluded from the outset that the regulation of Section 159 SGB III can be applied to a termination given by a person living in Great Britain.
2. The application of Section 159 SGB III to the termination of an employment relationship in Great Britain does not violate Article 45 TFEU, according to which the freedom of movement of workers is guaranteed within the Union. The imposition of a blocking period and the resulting expiration of a domestic unemployment benefit claim does not prevent the plaintiff from taking up employment again in a member state of the European Union.
Guiding principle (Juris)
1. A period of employment completed in a Member State can only be taken into account when determining the qualifying period to be fulfilled for the granting of unemployment benefits if, regardless of the time that has elapsed between the end of the last period of insurance in Germany and the application for benefits No further period of insurance has been completed in another member state in the meantime (following the ECJ, judgment of November 11, 2004 - C-372/02, SozR 4-6050 Art. 71 No. 4, juris No. 52).
2. A self-termination of an employment relationship carried out there in a Member State without good cause constitutes a blocking period under German law; the principle of territoriality does not conflict with this.
Source: socialcourtsability.de
5. Decisions of the state social courts on social assistance (SGB XII)
5.1 – LSG Hessen, decision of. 01/29/2020 – L 4 SO 154/19 B
Social welfare (SGB XII), data protection law (GDPR)
Guiding principle (Juris)
1. The collection of social data from the person concerned as part of the official investigation in the administrative procedure for the approval of social benefits (§ 20 SGB X, § 67a para. 2 SGB 1 GDPR, as this processing is necessary in this specific case in accordance with Article 6 Paragraph 1 Letter c GDPR to fulfill a legal obligation.
2. On the restrictive interpretation of Section 56a SGG due to Art. 19 Para. 4 GG and Art. 47 GrCh (juris: EUGrdRCh).
Source: socialcourtsability.de
6. Decisions of the social courts on asylum law
6.1 - Hildesheim Social Court - Ref.: S 42 AY 195/19 ER from February 10, 2020
Standards: Section 2 Paragraph 1 AsylbLG, Section 82 Paragraph 3 Sentence 3 SGB XII - Keywords: Benefits according to the AsylbLG, Federal Voluntary Service, tax deductions
Guidance rate (editor)
An allowance of 200 euros must be deducted from income from the federal voluntary service. The Chamber follows the judgment of the Bavarian LSG of September 27, 2018 - L 8 SO 18/16 - which applies Section 82 Paragraph 3 Sentence 3 SGB is to be discontinued. The legislature closed this unplanned regulatory gap by amending Section 82 Paragraph 2 Sentence 2 SGB XII from January 1, 2020.
Source: Attorney Sven Adam
6.2 - Hildesheim Social Court - Ref.: S 42 AY 201/19 ER from February 4th, 2020
Norms: Section 1a Paragraph 2 AsylbLG, Section 1 Paragraph 1 No. 5 AsylbLG - Keywords: Benefit reduction in the AsylbLG, defining significance of entry
Guidance sentence (editor)
1. If entry is based on a variety of motives, the purpose-means ratio required by law can only be viewed as fulfilled if the purpose of claiming benefits according to the AsylbLG was of decisive importance for the decision to enter ( see Hohm, in GK/AsylbLG, loose-leaf collection, § 1a, Rd. 67).
2. An examination in the present individual case shows that the applicant who is legally obliged to leave the country pursuant to Section 1 Paragraph 1 No. 5 AsylbLG left his home state of Liberia primarily for economic reasons and did not remain in the safe third country of Spain because the destination of his flight was Germany. However, taking up employment in the federal territory as soon as this was legally possible with the granting of a toleration in accordance with Section 60a of the Residence Act shows that he did not enter the country primarily to receive social benefits under the AsylbLG.
3. Reference is made to the decision of December 13, 2019 - S 42 AY 207/19 ER - after the chamber rejected privileged services according to standard level 1 for residents of shared accommodation because the Federal Constitutional Court alone has the authority to reject federal laws.
Source: Attorney Sven Adam
7. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
7.1 – Exclusion of benefits for EU foreigners unconstitutional?
Social Court: Submission to the Federal Constitutional Court
EU foreigners living in Germany who do not work and have no other right of residence do not receive unemployment benefit II (so-called Hartz IV). At the end of 2016, the legislature also included a corresponding exclusion of benefits for social assistance in the law (Section 23 Paragraph 3 Sentence 1 No. 2 SGB XII) and generally limited social assistance benefits to one month. EU foreigners who file a lawsuit against the loss of their right of residence before the administrative court are therefore almost completely excluded from subsistence benefits for the duration of the administrative court lawsuit. In this situation, foreigners from third countries regularly receive asylum seeker benefits.
Single mother with three children does not receive any benefits.
In this specific case it concerns a mother with three underage children. You are Romanian citizens and have lived in Germany since 2010. The children go to school here. In 2018, the immigration authorities determined that there was no right to freedom of movement. The family is suing the administrative court against this. Unemployment benefit II will no longer be paid to her due to her unclear right of residence. An application for social assistance was also rejected. The family filed an urgent application against this before the Darmstadt Social Court at the end of October 2019.
The family is currently meeting their needs largely through donations in kind from a church community. There is a risk of homelessness because an eviction lawsuit has been filed due to rent arrears.
Basic right to guarantee a humane subsistence level violated?
The 17th Chamber of the Darmstadt Social Court is convinced that the almost complete exclusion of benefits violates the fundamental right to guarantee a humane minimum subsistence level (Art. 1 Para. 1 in conjunction with Art. 20 Para. 1 GG). As a human right, this fundamental right is equally available to German and foreign citizens who are staying in the Federal Republic of Germany. The human dignity guaranteed in Article 1 Paragraph 1 of the Basic Law cannot be relativized in terms of migration policy. The Social Court therefore submitted the question to the Federal Constitutional Court for a decision as to whether the relevant provision is compatible with the Basic Law.
Resolution of January 14, 2020 – Ref. S 17 SO 191/19 ER
7.2 – Every second social assistance recipient needs support after job placement
Poor despite working – more than half of all Hartz IV recipients have to continue to claim benefits after they have found work.
further: www.tagesspiegel.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
