1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Saxon State Social Court, decision of 22 January 2020 – L 7 AS 1435/19 B ER
Taking over rent arrears through the JobCenter makes no sense if the landlord is "under no circumstances willing" to continue the tenancy.
Guidance (Editor):
Assuming rent arrears makes no sense if this would prevent the legal consequences of an extraordinary termination and the landlord does not wish to continue the tenancy; under these circumstances, one assumes, on the one hand, a lack of entitlement to an injunction (e.g., Burkiczak in: jurisPK-SGG, § 86b Rn. 351), but at the same time, under Rn. 372.1, refers to a lack of grounds for an injunction if the accommodation is at risk for reasons over which neither the benefit recipient nor the job center can influence, or if assuming the current rent payments would not eliminate the grounds for the eviction action.
Source: socialcourtsability.de
1.2 – Baden-Württemberg State Social Court, decision of 06.02.2020 – L 3 AS 4073/19 ER-B
Principle (Juris)
1. If a basic income support provider revokes its approval decision with effect ex nunc by means of a notice, there is no need for legal protection for an application for preliminary legal protection in the form of an order suspending the effect of an objection or action for annulment against the revocation notice if a legally binding preliminary injunction in the form of a regulatory order already exists for the revocation period.
2. The subject matter of preliminary injunction proceedings is limited in time to the subject matter of a corresponding main action that underlies or could underlie the preliminary injunction proceedings (following: Baden-Württemberg State Social Court, decision of September 10, 2012 – L 13 AS 2976/12 ER-B). Therefore, in the case of basic income support benefits, not only must a new lawsuit be filed for each new benefit period, but also a new preliminary injunction proceeding (following: Bavarian State Social Court, decision of July 16, 2012 – L 11 AS 323/12 ER-B).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Cottbus, decision of 18 December 2019 – S 29 AS 1540/19 ER
In today's world, an internet-enabled laptop for homework, etc., constitutes an unavoidable and special need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) (Editor's Note)
Guiding principle by RA Dr. Lehmann, Cottbus
Jobcenter must cover the purchase costs for an internet-enabled laptop including accessories (here 500 euros).
Source: ra-jtlehmann.de
Note:
See also Kiel Social Court, decision of October 21, 2019 – S 40 AS 260/19 ER, €350; Schleswig-Holstein Higher Social Court, decision of January 11, 2019 – L 6 AS 238/18 B ER – here €600; Stade Social Court, decision of September 29, 2018 – S 39 AS 102/18 ER – here €399; Hanover Social Court, decision of February 6, 2018 – S 68 AS 344/18 ER (tablet for €369); Cottbus Social Court, decision of October 13, 2016 – S 42 AS 1914/13 (PC for €350); Gotha Social Court. 17.08.2018 – S 26 AS 3971/17 (PC with printer, software and setup for €600).
3. Decisions of the State Social Courts on Employment Promotion (SGB III)
3.1 – Baden-Württemberg State Social Court, Judgment of 12 February 2020 – L 3 AL 4432/18
Principle (Juris)
1. The enforcement of the civil-law liability of a partner in a civil-law partnership for a debt of the partnership by means of an administrative act, a so-called liability notice, as a prerequisite for the application of administrative coercion, requires, due to the specific intervention effects associated with this form of action, a corresponding legal basis according to the principle of legality (so-called administrative act authority; following BVerwG, decision of 05.06.2019 – 7 B 18/18 -).
2. The Social Code does not provide a legal basis for issuing a liability order (following the Bavarian State Social Court, judgment of 29 January 2019 – L 5 KR 394/18 -).
3. In particular, Section 128 Sentence 1 of the German Commercial Code (HGB) or Section 191 of the German Fiscal Code (AO) do not constitute a legal basis for action by administrative act (following the Bavarian State Social Court, judgment of 29 January 2019 – L 5 KR 394/18 -).
Source: socialcourtsability.de
3.2 – LSG NRW, judgment of February 20, 2020 – L 9 AL 6/18
Unemployment benefits for filmmakers
The LSG Essen has ruled that a costume design assistant and wardrobe mistress for film companies is entitled to unemployment benefits even with a contract limited to up to ten weeks, which contains extension clauses that are also used.
Summary:
According to the State Social Court, a forward-looking analysis of the contested employment contracts also indicates that the employment was initially intended to be only a short-term arrangement within the meaning of Section 142 Paragraph 2 of the German Social Code, Book III (SGB III). The resulting extension of the contract is considered typical for the industry. For economic reasons, no film company will conclude contracts longer than necessary; however, it is inherent in the nature of productions that they do not always adhere to the planned, tight schedule. This is precisely what the contracts reflect. If the legislator, with the exception in Section 142 Paragraph 2 of the SGB III (as amended on December 10, 2014), intended to make it easier for artists in their specific working environment to receive unemployment benefits, then their particular circumstances must also be taken into account by allowing the contracts to contain opening clauses of the type in question.
The LSG Essen has granted leave to appeal.
juris editorial team.
Source: Press release from the LSG Essen dated March 23, 2020
4. Decisions of the state/social courts on social assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, Judgment of 04.12.2019 – L 2 SO 2656/19 – Appeal allowed
Regarding the accrual of interest on a claim for additional payment within the framework of a review procedure pursuant to Section 44 of the Tenth Book of the Social Code (SGB X)
Should the accrual of interest on a back payment claim arising from a review procedure under Section 44 of the German Social Code, Book X (SGB X), and thus the due date of this back payment claim under Section 44, Paragraph 1 of the German Social Code, Book I (SGB I), be determined by the start of the back payment period or by the decision in the review procedure? This case is pending before the Federal Social Court (BSG) under file number B 8 SO 15/19 R
Guidance (Editor):
For the purposes of determining the due date, the relevant date is the date of the review application or the decision regarding the claim for back payment, because the application initiating the review procedure is (only) to be considered a "benefit application" within the meaning of Section 44 Paragraph 2 of the German Social Code, Book I (see Higher Social Court of North Rhine-Westphalia, judgment of June 10, 2013 – L 20 SO 479/12 – settled by agreement before the Federal Social Court – B 8 SO 17/13 R – Report No. 64/14 of the Federal Social Court). The Federal Social Court stated that the interest claim, as an accessory ancillary benefit to the main claim, shares its legal fate, so that, contrary to the opinion of the Higher Social Court of North Rhine-Westphalia, the relevant date for the commencement of interest is not the review application concerning the main benefit or the decision thereon, but rather the earlier due date after the first application for basic income support benefits – also for subsequent periods – in the original administrative procedure.
Source: socialcourtsability.de
Note:
Guiding principle (Juris)
1. In any case, in situations where a beneficiary can expect a decision on interest solely due to the passage of time, and the decision contains no indication of a separate decision on interest or other indications that it is only a partial decision leaving the question of interest open, the presumption applies – unlike in the case of a failure to make a decision on costs – that the request has been fully decided (cf. LSG Darmstadt of 11.10.2017 – L 4 SO 169/16 =ZFSH/SGB 2018, 162).
2. If the original decision regarding the benefit claim, which was valid until the decision on the review application, has become legally binding, the claim for back payment arises only upon issuance of the decision issued pursuant to Section 44 of the German Social Code, Book Ten (SGB X), even if it does not differ materially from the original social benefit claim
Legal tip: Contrary to the ruling of the Hessian State Social Court, judgment of 11 October 2017 – L 4 SO 169/16 – legally binding –
If the entitlement to monetary benefits is only established in a procedure in favor of the applicant pursuant to Section 44 of the German Social Code, Book X (SGB X), then the date of the original application for benefits, and not the date of the review application, is decisive for the commencement of interest pursuant to Section 44 Paragraph 2 of the German Social Code, Book I (SGB I).
4.2 – Duisburg Social Court, decision of 04.12.2019 – S 3 SO 616/16 ER – legally binding
The Albanian applicant is entitled to benefits under Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII), in the amount of the benefits under Chapter Three of the German Social Code, Book XII (SGB XII) – assistance for subsistence to overcome a particular hardship and to cover a temporary need, in this case due to the applicant's illness
Guidance Note (Editor)
1. These circumstances arise from the fact that, firstly, the plaintiff's dignified minimum standard of living was not guaranteed, and secondly, it was not possible to refer the plaintiff to reasonable self-help options, in particular to leaving the country. The provision of Section 23 Paragraph 3 Sentence 6 of the German Social Code, Book XII (SGB XII), even considering its restrictive design (particular hardship, extension across months only in exceptional individual circumstances, and a temporary need), must be interpreted in this way in a manner consistent with the constitution (see also the decision of the Higher Social Court of North Rhine-Westphalia of May 30, 2019 – L 20 AY 15/19 B ER).
2. According to the jurisprudence of the Federal Constitutional Court, Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law establishes a fundamental right to a guaranteed minimum standard of living that ensures human dignity. This fundamental right applies equally to Germans and to foreigners residing in Germany. To safeguard this fundamental right, a statutory entitlement to benefits must be granted. In this regard, the legislature has discretion both in assessing the actual circumstances and in evaluating necessary needs, but must align the benefits with the respective level of development of the community and the existing living conditions with regard to specific needs. The decisive factor is the situation in Germany, not that in the country of origin (see the judgment of the Federal Constitutional Court of July 18, 2012 – 1 BvL 10/10 and 2/11).
3. The plaintiff was unable to manage his personal affairs, particularly with regard to his healthcare. Furthermore, due to his illness, he exhibited significant self-harming and other-harming tendencies, which repeatedly necessitated intermittent acute admission to a psychiatric hospital. The defendant's public health department, after its own examination of the plaintiff, also determined that, due to his illness, the plaintiff was neither able to fly to his home country nor reach it by land, and that no improvement in his condition was to be expected.
Source: socialcourtsability.de
4.3 – Duisburg Social Court, Judgment of 04.12.2019 – S 3 SO 552/17 – legally binding
Regarding the assumption of the plaintiff's uncovered nursing home costs by the defendant as benefits for long-term care under Chapter Seven of the Social Code, Book Twelve – Social Assistance – (SGB XII), affirmed here – disclaimer of an inheritance – no assumption of the immorality of the disclaimer of inheritance
Guidance (Editor)
1. In particular, taking into account the case law of the Federal Court of Justice, the plaintiff likely exercised her right under Section 1942 Paragraph 1 of the German Civil Code (BGB) to disclaim the inheritance in a permissible manner (cf. Federal Court of Justice, Judgment of January 19, 2011 – IV ZR 7/10; see also Higher Social Court of North Rhine-Westphalia, Judgment of August 6, 2012 – L 19 AS 771/12, para. 40; Higher Regional Court of Hamm, Judgment of October 27, 2016 – Case No. I-10 U 13/16).
2. For a binding judicial clarification of whether the disclaimer of inheritance is contrary to public policy, the defendant is to be referred to the possibility of enforcing any claims to be transferred pursuant to Section 93 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) before the civil courts.
Source: socialcourtsability.de
4.4 – SG Kiel, decision of 26.03.2020 – S 26 SO 8/20 ER
The social security provider must provide detailed information about the methods used to search for affordable housing, an article by attorney Helge Hildebrandt
1. If the rent of benefit recipients under the German Social Code, Book II (SGB II, ALG II or Hartz IV) or Book XII (SGB XII, basic income support for the elderly and those with reduced earning capacity or assistance for subsistence) is more than 10% above the respective applicable rent ceiling, the Kiel Job Center or the City of Kiel will request their benefit recipients in standard form letters to reduce their rent costs to the respective rent ceiling.
2. The 26th Chamber of the Kiel Social Court has now ruled in its decision of March 26, 2020, under file number S 26 SO 8/20 ER, that the City of Kiel failed to adequately inform a benefit recipient about the required documentation of his search efforts for affordable housing. At the same time, the court ordered the benefit recipient to document his search efforts as follows:
More information: sozialberatung-kiel.de
5. Decisions of the State Social Courts on Asylum Law
5.1 – Lower Saxony-Bremen State Social Court, decision of 19 March 2020 – L 8 AY 4/20 B ER
Lower Saxony-Bremen State Social Court: Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) may be unconstitutional
Guidance (Lawyer Jan Sürig, Bremen)
1. When examining the question of the motivation for entry (in order to obtain benefits under the Asylum Seekers' Benefits Act, Section 1a Paragraph 2 Asylum Seekers' Benefits Act), difficult factual and legal questions arise, in particular whether the receipt of Asylum Seekers' Benefits Act was actually the primary motivation for entry or whether the desire to create a livelihood through work and the circumstances in the country of origin should also be taken into account.
2. The requirement to enter the country pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) may not justify a permanent restriction of benefits, because it is not a restriction of benefits due to behavior (see further references).
3. The decision of the Federal Constitutional Court of 5 November 2019 (1 BvL 7/16) raises once again the fundamental question of the compatibility of the restriction of benefits under Section 1a AsylbLG with the fundamental right to a dignified minimum standard of living.
4. The reduction of benefits under Section 1a and also the denial of analogous benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act may be unlawful if the authority had no strategy and no concept for deportation (the applicant is demonstrably not registered in the birth registers in either Serbia or Kosovo).
5. Since the legal validity of the concept of entitlement restrictions under Section 1a AsylbLG cannot currently be assessed, granting the application in the preliminary injunction proceedings is possible, therefore legal aid is granted.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Surveillance of SGB II recipients by job centers, an article by lawyer Carsten Paulini – Commentary on SG Hildesheim, decision of December 23, 2019, S 31 AS 4306/19 ER, not published.
It's a sore subject, but the legal situation is clear. Surveillance of the benefit recipient is inadmissible.
More information: www.anwalt.de
6.2 – Note on: Federal Constitutional Court, First Senate, Third Chamber, Chamber Decision of 4 December 2019 – 1 BvL 4/16
Author: Dr. Christian Stotz, Judge at the State Social Court
Inadmissible submission by the Social Court of Mainz regarding the exclusion of foreigners from benefits under the German Social Code, Book II (SGB II)
Guiding Principles
1a. The reasoning of the referral decision must discuss the views expressed in case law and legal literature on conceivable interpretations, in particular also on interpretations consistent with the constitution. The referring court must provide a defensible explanation as to why such an interpretation should be excluded (cf. Federal Constitutional Court, Decision of 17 April 2008 – 2 BvL 4/05 – BVerfGE 121, 108, 117).
1b. If the regulation submitted in the judicial review proceedings concerns social benefit entitlements (here: exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II), the referring court cannot simply reject a constitutionally compliant interpretation on the grounds that such an interpretation does not establish a legal entitlement. Although the guarantee of a dignified minimum standard of living must be secured by a legal entitlement (see Federal Constitutional Court, Judgment of 18 July 2012 – 1 BvL 10/10 para. 96 – BVerfGE 132, 134, 173), discretionary benefits in the area of basic income support or other opening clauses are not unconstitutional per se (cf. regarding Section 6 of the Asylum Seekers' Benefits Act, Federal Constitutional Court, Judgment of 18 July 2012 – 1 BvL 10/10, 1 BvL 2/11 – BVerfGE 132, 134 <170 para. 89>).
1c. Furthermore, a discretionary entitlement is not inherently too vague. While rules governing discretion and opening clauses must also meet the relevant constitutional requirements, this is not precluded if the legislature grants the administration leeway for particularly deserving exceptional cases and creates the often necessary flexibility in extraordinary circumstances (cf. Federal Constitutional Court, Judgment of May 24, 2006 – 2 BvR 669/04, para. 54f – BVerfGE 116, 24, 69).
2. Here: Inadmissible referral by the judge regarding the constitutionality of the exclusions from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), and pursuant to Section 7 Paragraph 5 of the SGB II in the case of a family originating from a non-EU country (Uzbekistan). The relevance of these provisions to the decision has not been sufficiently demonstrated in several respects.
2a. With regard to the requirement for the granting of a residence permit to state that one has sufficient means to cover living expenses (§ 5 para. 1 no. 1 AufenthG), it is unclear how the fact that the residence permit of the plaintiffs in the original proceedings was only extended shortly before the application for basic income support benefits affects this.
2b. Regarding the relevance of the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), the referring court does not clarify whether a constitutionally compliant interpretation resulting in an entitlement to benefits could be considered in favor of the plaintiffs in the original proceedings, or whether the discretion of the authorities to grant benefits pursuant to Sections 17 et seq. of the German Social Code, Book XII (SGB XII) could also solidify into an entitlement in the case of the plaintiffs in the original proceedings (reference, inter alia, to the Federal Social Court (BSG), judgment of 09.08.2018 – B 14 AS 32/17 R, paragraphs 23, 42, both concerning EU foreigners).
2c. Finally, information on the current residence status of the plaintiffs in the original proceedings is missing.
Further information: www.juris.de
6.3 – Changes to the German Social Code, Book II (SGB II) due to the COVID-19 pandemic, an article by attorney Helge Hildebrandt,
available here: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
