1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG Baden-Württemberg, judgment of March 18, 2020 – L 3 AS 3218/18
Regarding the assumption of travel expenses for methadone treatment by the JobCenter as an additional need according to § 21 para. 6 SGB II
Guidance (Editor)
1. Travel expenses for methadone treatment must be paid by the job center.
2. This is not a benefit provided by the health insurance fund, nor does the need have to be covered by savings from the standard allowance.
3. The costs for a monthly travel pass (approx. 100 euros) were to be covered by the JobCenter.
Source: Attorney Martin Weise, Freiburg
Legal tip:
See also the rulings of the Higher Social Court of North Rhine-Westphalia (LSG Nordrhein-Westfalen) of March 19, 2015 – L 6 AS 1926/14 – regarding travel expenses for daily outpatient methadone substitution therapy; the Social Court of Koblenz (SG Koblenz) of March 17, 2015 – S 6 AS 214/15 ER; and the Social Court of Detmold (SG Detmold) of September 11, 2014 – S 23 AS 1971/12 and the Social Court of Wiesbaden (SG Wiesbaden) of October 11, 2010 – S 23 AS 766/10 ER.
Note: See also the guiding principle (Juris)
1. Daily travel expenses for methadone substitution treatment constitute an unavoidable, ongoing, and not merely one-off need within the meaning of Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (following the ruling of the Higher Social Court of North Rhine-Westphalia of March 19, 2015 – L 6 AS 1926/14 -).
2. The need for travel expenses is particularly unavoidable because it is not covered by benefits from statutory health insurance (following the decision of the Higher Social Court of North Rhine-Westphalia of 15 February 2016 – L 7 AS 1681/15 B -).
3. The separation of the benefit systems of basic income support for jobseekers and statutory health insurance does not fundamentally preclude a claim under Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (following the Federal Social Court's judgment of December 12, 2013 – B 4 AS 6/13 R).
1.2 – Baden-Württemberg State Social Court, Judgment of 18 March 2020 – L 3 AS 2746/18
Guidance (Editor)
1. The scope of application of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) (old version) regarding claims for reimbursement is limited with respect to benefits that have already been paid out and definitively approved (see Higher Social Court of Berlin-Brandenburg, judgment of August 24, 2017 – L 19 AS 2006/16). Benefits that have only been provisionally approved are always provided subject to the reservation of the right to reclaim them.
2. This interpretation of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) as amended, is not contradicted by its wording (but see Social Court Berlin, judgment of 18 January 2019 – S 37 AS 12211/18).
Source: socialcourtsability.de
1.3 – LSG Schleswig-Holstein, decision of June 26, 2019 (L 3 AS 66/18):
Demand for self-procured firewood
Guiding principle Dr. Manfred Hammel:
If an employable person entitled to benefits still has heating material (here: firewood), then there is no need for heating according to § 22 para. 1 sentence 1 SGB II.
A need for new heating fuel only arises when no fuel is available for the benefit period (§ 41 SGB II).
A binding claim can only be asserted in relation to current needs.
This applies particularly in cases where there is no indication of what firewood supplies the applicant still has and what wood he has actually acquired with the funds granted so far in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
While a stockpile of heating material lasting several months is not yet considered contrary to the system, further stockpiling can only be considered sensible if the continuation of social benefit receipt is sufficiently likely and such stockpiling can also be assessed as economically viable.
Of particular importance here is the aspect if the applicant – despite a corresponding request from the job center – fails to provide meaningful evidence of the scope and costs of his actual firewood procurement.
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Bremen Social Court, judgment of March 3, 2020 (S 16 AS 947/17):
Guiding principle of Dr. Manfred Hammel
: On the acceptance of the “Technical Instruction” issued by a job center to specify the appropriateness of the needs for accommodation and heating in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), because this guideline meets the requirements of a coherent concept.
This can also be a rent index (§ 558c BGB), provided that the data on which it is based can be considered representative and valid. This must be affirmed if a wide variety of interest groups in the housing market (such as municipal offices, tenants' associations, homeowners' associations, and real estate agents' associations) participate in its compilation and if the entire city area is maintained as the comparison area.
2.2 – Social Court Cottbus, decision of December 18, 2019 (S 29 AS 1540/19 ER):
Guiding principle by Dr. Manfred Hammel:
On the obligation of the responsible job center to grant a subsidy in the amount of EUR 500,- in accordance with § 21 para. 6 SGB II for the purchase of an internet-enabled laptop and accessories for a needy student attending the tenth grade of secondary school.
In today's world, this is an unavoidable, special need – especially with ongoing schooling – and therefore a need that can be subsumed under § 21 para. 6 SGB II.
This also applies to disadvantaged students still in the tenth grade of secondary school. At the end of middle school, they face exams requiring in-depth preparation, for which an internet-enabled laptop is now an almost indispensable tool.
2.3 – Stralsund Social Court, judgment of 16 January 2020 (S 6 AS 914/18):
Guiding principle by Dr. Manfred Hammel
on the merits of an action for inaction brought pursuant to § 88 SGG.
If the job center being sued for inaction – despite the expiry of the deadline under Section 88 Paragraph 2 of the Social Court Act (SGG) – neither presents reasons for not deciding on the objection nor fulfills the plaintiff's asserted claim for a decision on the objection, which was raised in due form and time, then the SGB II provider must be obligated, as requested, to decide on this objection.
3. Decisions of the social courts on employment promotion (SGB III)
3.1 – Social Court Cottbus, decision of January 30, 2020 (S 39 AL 7/19):
Guiding principle (Attorney Dr. Jens-Torsten Lehmann):
Issuance of an integration administrative act requires prior consultation with a lawyer.
Guiding principle by Dr. Manfred Hammel:
A refusal by an employable person entitled to benefits to countersign an integration agreement pursuant to Section 37 Paragraph 2 Sentence 1 No. 3 of the German Social Code, Book III (SGB III), which defines their required efforts for vocational integration and entitles the employment agency to issue an integration administrative act pursuant to Section 37 Paragraph 3 Sentence 4 of the SGB III, does not exist if the applicant merely refuses to sign the integration agreement presented to them immediately on the spot at the employment agency in order to first discuss the contents of this document with their lawyer.
This is permissible and not objectionable.
In this case, the employment agency must grant an applicant a consideration period of more than two days.
4. Decisions of the State Social Courts on Asylum Law
4.1 – Saxon State Social Court. Decision of March 23, 2020, file number: L 8 AY 4/20 B ER
The Saxon State Social Court recognizes: Covid-19 requires higher benefits for single and single-parent refugees.
Source: www.rav.de
Note:
RAV – Press Release No. 06/20 of April 8, 2020.
Since September 1, 2019, new rules regarding social security have applied to refugees in Germany. Since then, basic income support for single individuals and single parents in communal accommodations has been reduced to 90 percent. The justification for the change in the law, which lacks empirical support, states that they can be expected to manage their finances together like married couples. In Germany, preliminary injunction and main proceedings are pending against this. Due to the significant impact of the Covid-19 pandemic on people in communal accommodations, numerous further applications for preliminary injunctions are being filed with the social courts.
Note from the RAV, further supplemented by Editor:
This regulation has already been deemed unconstitutional by several German social courts in expedited proceedings, even without considering the effects of the Covid-19 virus (see: Social Court Landshut, decisions of October 24, 2019 – S 11 AY 64/19 ER and of January 28, 2020 – S 11 AY 3/20 ER and of January 23, 2020 – S 11 AY 79/19 ER; Social Court Hanover, decision of December 20, 2019 – S 53 AY 107/19 ER; Social Court Leipzig, decision of January 8, 2020 – S 10 AY 40/19; Social Court Darmstadt, decision of January 14, 2020 – S 17 SO 191/19 ER; Social Court Frankfurt/Main, decision of January 14, 2020). – S 30 AY 26/19 ER; Social Court Freiburg, decisions of 20 January 2020 – S 7 AY 5235/19 ER and of 3 December 2019 – S 9 AY 4605/19 ER; Social Court Dresden, decision of 4 February 2020 – S 20 AY 86/19 ER; Social Court Munich, judicial notice of 31 January 2020 – S 42 AY 4/20 ER and decision of 10 February 2020 – S 42 AY 82/19 ER; Higher Social Court Saxony, decision of 23 March 2020 – L 8 AY 4/20 B ER).
Legal tip: Guiding principles by Dr. Manfred Hammel
, LSG Saxony, decision of March 23, 2020 (L 8 AY 4720 B ER):
There is generally a significant public interest in the prompt termination of the residence of foreigners who are tolerated (§ 60a AufenthG in conjunction with § 1 para. 1 no. 4 AsylbLG) or who are subject to enforceable deportation (§ 58 para. 1 sentence 1 AufenthG in conjunction with § 1 para. 1 no. 5 AsylbLG).
Section 48 paragraph 3 sentence 1 of the Residence Act obliges every foreigner living in the federal territory to cooperate to the best of their ability in obtaining an identity document and, in particular, to provide information that enables their identification.
However, this requires that the competent authority expressly informs the foreigner of the existence of such an obligation and the consequences of failing to cooperate in this regard.
At this point, it is not sufficient for the public authority to simply request an identity document from a foreigner applying for permission to work.
The cessation of benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) due to alleged illegal employment and a lack of need, as determined by the authorities, without a prior hearing, is unlawful. Particularly in the area of subsistence-level assistance, the actual prerequisites for any reductions or cessations of benefits considered by the authorities must always be carefully ascertained, while respecting the right to be heard (Section 62 of the Social Court Act (SGG)).
As a prerequisite for a restriction of entitlement pursuant to Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), there must be both conduct attributable to the foreigner in connection with the determination of his identity and a causal link between this attributable conduct and the unenforceability of measures terminating his residence.
The legality of automatically assigning single benefit recipients under Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG) to standard benefit level 2 (Section 3a Paragraph 1 Number 2b) AsylbLG) simply because they live in communal accommodation is questionable. There is no reliable evidence to support the claim that this form of accommodation alone always results in a lower need for subsistence benefits.
4.2 – LSG Hessen, decision of 31.03.2020 – L 4 AY 4/20 B ER
Legal provisions: Section 1a AsylbLG – Keywords: Section 1a para. 1 AsylbLG (old version) and Section 1a para. 2 AsylbLG must remain inapplicable if their application achieves the repressive objective of the provisions; there is no migration policy relativization of human dignity
Guidance (Editor)
Regarding the question of whether Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is possibly unconstitutional (cf. Lower Saxony State Social Court, decisions of March 19, 2020 – L 8 AY 4/20 B ER and of December 4, 2019 – L 8 AY 36/19 B ER (both by attorney Jan Sürig, Bremen))
Guiding Principles (Attorney Sven Adam, Göttingen)
1. Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version and Section 1a Paragraph 2 in conjunction with Section 1a Paragraph 1 of the AsylbLG in the version applicable since August 21, 2019, require a constitutionally compliant interpretation. The scope of legitimate purposes for imposing obligations to cooperate or refrain from certain actions and for sanctioning them must therefore be narrowly defined, as the Basic Law does not recognize any general fundamental duties of citizens. In particular, human dignity is guaranteed without regard to characteristics and social status, as well as without regard to achievements; it does not have to be earned, but is inherent in every human being.
2. A restriction of entitlement can only comply with the requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law if it is not aimed at repressively punishing misconduct, but rather at ensuring that obligations to cooperate are fulfilled, obligations which serve precisely to avoid or overcome existential need. This presupposes that it is actually possible for those affected to avert the reduction of state benefits through their own reasonable conduct and to regain the subsistence-securing benefit.
3. A demanded departure is not such reasonable behavior because the departure results in the originally entitled person leaving the spatial area of guarantee of Art. 1 para. 1 in conjunction with Art. 20 para. 1 GG and the scope of application of the Asylum Seekers' Benefits Act (AsylbLG), and their claim is extinguished by this supposed act of cooperation.
Source: Attorney Sven Adam, Göttingen
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – The Social Protection Package: (First) Effects of the COVID-19 Pandemic on Social Law, Author: Dr. Andy Groth, Judge at the State Social Court
Further information: www.juris.de
Happy Easter and stay healthy!!!!
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
