1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, Judgment of December 12, 2019 (B 14 AS 26/18 R):
Guiding principle of Dr. Manfred Hammel:
The appropriateness of expenses associated with using one's own home for residential purposes should be assessed based on the costs that are considered appropriate for rental apartments. The question of the appropriateness of accommodation costs should be answered according to uniform criteria for both tenants and homeowners.
The expenses for accommodation to be recognized by the job center within the framework of appropriateness in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), include, in particular, the interest on debt to be paid to finance owner-occupied homes, but in principle not repayment installments.
With regard to the strong protection of the basic need for "housing" under the German Social Code, Book II (SGB II), exceptions to this principle are warranted in narrowly limited cases, e.g., for the preservation of home ownership, the financing of which is already largely completed at the time of receiving benefits under Sections 19 et seq. of the SGB II and the acquisition of which took place outside of the period of benefit receipt.
In this specific situation, the aspect of wealth accumulation using subsistence allowances takes a back seat to the goal, also pursued by the German Social Code, Book II (SGB II), of enabling the recipient to retain their housing. According to Section 22, Paragraph 1, Sentence 1 of the SGB II, for owners of owner-occupied properties, only those payment obligations for the respective month that are due within that period in relation to the owner-occupied property are to be considered as needs.
Installment payment obligations based on a payment agreement concluded with the lender after a terminated real estate loan agreement, in order to repay the outstanding debt and accrued interest in installments, are not to be recognized by the job center as a housing-related need in later payment months.
In these later months, these payments no longer serve to fulfill current obligations arising from the loan agreement concluded on the occasion of the acquisition of the residential property, but solely to pay off previously due (old) debts.
For these liabilities, it is not possible to differentiate between the recognition of current interest payments as a need and the recognition of repayment due to the total debt from the terminated loan agreement, which is usually to be denied.
These payment obligations arise from contracts that are no longer valid and that both originated and became due before the current receipt of benefits under Sections 19 et seq. of the German Social Code, Book II (SGB II). This only indirectly relates to home financing.
1.2 – BSG, Judgment of March 27, 2020 (B 10 ÜG 4/19 R)
Dr. Manfred Hammel's guiding principle:
Section 198 Paragraph 3 of the Courts Constitution Act (GVG) does not impose any special requirements regarding the form or minimum content of a complaint of undue delay, and in particular does not stipulate a requirement for written form. A complaint of undue delay can also be raised orally before the court of the original proceedings. It has the character of a "reminder" to the judge at the original court handling the specific case, either to prevent an imminent delay in the proceedings or to remedy a delay that has already occurred and to bring the court proceedings to an expeditious conclusion.
If the proceedings should be further delayed at a higher court in the appeals process, a renewed complaint of delay must be lodged (§ 198 para. 3 sentence 5 GVG).
In the context of a complaint regarding undue delay, a plaintiff, for example, merely needs to clearly express their disagreement with the length of the proceedings and demand an acceleration of the process. A complaint regarding undue delay does not need to be explicitly designated as such by a party to the proceedings; rather, it must be evident from a corresponding statement that, for example, the plaintiff does not accept the duration of the court proceedings. Section 198 of the Courts Constitution Act (GVG) does not impose any obligation to provide reasons for such a complaint.
The complaint of undue delay constitutes a substantive prerequisite for the claim for compensation under Section 198 Paragraph 1 Sentence 1 of the Courts Constitution Act (GVG), a liability-establishing obligation of the (subsequent) claimant for compensation. The complaint of undue delay is intended to have a "concrete-preventive acceleration effect" on the initial proceedings in each individual case and to contribute to preventing any (further) delay giving rise to a claim for compensation. This is a "procedural act of its own kind," which, however, requires sufficient procedural specificity.
General statements from a plaintiff are unacceptable here. This is especially true when several lawsuits filed by the same person are pending before the court of first instance. Therefore, a complaint of undue delay pursuant to Section 198 Paragraph 3 of the Courts Constitution Act (GVG) must specify the case before the court of first instance, either by its file number or by a case that can be clearly identified from the content of the statement. Only then can the statement fulfill its intended warning and expediting function.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Lower Saxony-Bremen State Social Court, Judgment of 26 May 2020 – L 11 AS 793/18 – Appeal allowed
Regarding the legal question of whether additional needs benefits pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) are also available for one-off special needs necessary for school that are not adequately covered otherwise.
For the purchase of work clothes for school as a hardship allowance
Principle (Juris)
1. The acquisition costs for special work clothing required for school (here: cook's work clothing for attending the one-year vocational entry class "Food Craft and Gastronomy" of a vocational school) fall under the necessary basic income support needs of school-age recipients of benefits under SGB II.
2. Necessary school supplies not covered by other means are to be provided within the framework of basic income support under the German Social Code, Book II (SGB II). The SGB II benefits provider acts as a "guarantor of last resort" in this regard, irrespective of the educational sovereignty of the federal states.
3. Acquisition costs for special work clothing required for school are not covered by the school supplies allowance of § 28 para. 3 SGB II.
4. Expenditures for work clothes and education are indeed included in the calculation of the standard allowance according to Section 20 of the German Social Code, Book II (SGB II) (Sections 3 and 10 of Section 6 Paragraph 1 No. 3 of the 2011 Standard Allowance Regulations). However, the need for specialized work clothes required for school and associated with not insignificant costs is structurally inadequately covered by the standard allowance, so that a clear shortfall remains (cf., by contrast, regarding the adequacy of the standard allowance for the purchase of everyday clothing required for school: Lower Saxony-Bremen Higher Social Court, decision of April 15, 2020 – L 11 AS 922/18 NZB -).
5. A one-off need for special work clothing required for school (here: a so-called career starter set to be purchased at the beginning of the school year) does not constitute an ongoing need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
6. The German Social Code, Book II (SGB II), contains an unintended regulatory gap for school-related one-off expenses not covered by the school supplies allowance under Section 28 Paragraph 3 SGB II and not adequately covered by the standard allowance (Section 20 SGB II), which involve more than negligible costs. This gap must be closed by a constitutionally compliant interpretation of Section 21 Paragraph 6 SGB II.
7. If, due to evident shortfall in coverage, a claim for a one-off additional needs benefit arises by way of constitutionally compliant interpretation, the partial amount included in the standard allowance for this need item can be deducted from this amount (here: 0.32 euros as the partial amount included for the need “education” in standard allowance level 4 in July 2016).
Source: www.rechtsprachung.niedersachsen.de
2.2 – Lower Saxony-Bremen State Social Court, decision of May 27, 2020 – L 13 SF 5/19 EK AS
Excessively long court proceedings; claim for compensation; lack of knowledge of the original proceedings by the claimant; failure to respond to court inquiries
Principle (Juris)
1. According to the clear wording of Section 198 Paragraph 1 Sentence 1 of the Courts Constitution Act (GVG), it is not sufficient for a claim for compensation that the plaintiff was involved in excessively long court proceedings. Rather, he must have suffered a disadvantage as a result of the unreasonable duration.
2. The presumption of non-material damages pursuant to Section 198 Paragraph 2 Sentence 1 of the Courts Constitution Act (GVG) may be refuted if the claimant for compensation had no knowledge of the original proceedings and therefore could not have suffered any psychological distress caused by the uncertainty about the outcome of the proceedings.
3. A delayed or refused response to reasonable inquiries from the court is solely the responsibility of the plaintiff. The resulting delay in proceedings cannot justify an unreasonable length of proceedings.
Source: www.rechtsprachung.niedersachsen.de
2.3 – Lower Saxony-Bremen State Social Court, decision of 25 May 2020 – L 11 AS 228/20 B ER
On the entitlement to housing and utilities benefits in the case of a sham tenancy agreement
Source: socialcourtsability.de
Note:
Job centers are not obligated to pay rent for sham contracts.
The LSG Celle-Bremen has ruled in a case of a hidden tenancy agreement between relatives that the job center only has to cover rent for basic income support recipients if the actual costs are disclosed.
2.4 – North Rhine-Westphalia State Social Court, decision of 30 April 2020 – L 7 AS 625/20 B ER; L 7 AS 666/20 B legally binding
guidance (Editor)
No additional Hartz IV benefits due to Corona masks.
Source: socialcourtsability.de
2.5 – North Rhine-Westphalia State Social Court, Judgment of 27.02.2020 – L 7 AS 1212/19 – pending before the Federal Social Court – B 14 AS 33/20 R
On the exemption from being taken into account of income from employment carried out during school holidays.
Guidance (Editor):
The wording of the regulation argues against dividing weeks into days. The legislator has stipulated a maximum of four weeks exempt from deduction. Had they intended to allow for days to be exempt, they could have formulated the regulation accordingly. The wording also necessitates a narrow interpretation because the legislator added the word "maximum." This emphasis clarifies that an extension of the period measured in weeks is to be excluded.
Source: socialcourtsability.de
2.6 – Schleswig-Holstein State Social Court, Judgment of 14 May 2020 – L 6 AS 159/17
Regarding the housing costs for an owner-occupied property.
Rent-to-own payments are considered as loan repayments and are not eligible for consideration as expenses for accommodation and heating.
Guidance (Editor):
Benefits under the German Social Code, Book II (SGB II) are limited to securing current subsistence and are not intended to serve asset accumulation, because even the installment payment of the purchase price by the plaintiff leads, from an economic perspective, to an increase in the plaintiff's assets (cf. regarding similar constellations of installment payments, Federal Social Court (BSG), judgment of February 16, 2012 – B 4 AS 14/11 R and judgment of July 7, 2011 – B 14 AS 79/10 R).
Source: socialcourtsability.de
3. Decisions of the social courts and administrative courts on asylum law
3.1 – Berlin Social Court, decision of 19 May 2020 – S 90 AY 57/20 ER
Communal accommodation, asylum seekers, shared household management, contact restrictions, Corona, Covid-19, pandemic, constitutionally compliant interpretation
Guidance (Editor):
Regardless of the question of whether the basic assumption of this consideration – namely, that savings or synergy effects can be achieved in collective accommodations which are equivalent to those of couple households – is constitutionally tenable without further empirical data (this is denied with regard to the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, and in this background doubts the constitutionality, for example, Social Court Frankfurt a. M., decision of January 14, 2020 – S 30 AY 26/19 ER and Social Court Landshut, decision of October 24, 2019 – S 11 AY 64/19 ER), in the opinion of the Chamber, at least during the period of validity of the SARS-CoV-2 Containment Measures Ordinance, joint economic management in this sense cannot be generally required.
Principle (Juris):
The provisions of Section 3a Paragraph 1 No. 2b) and Paragraph 2 No. 2b) of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted in a manner consistent with the constitution during the period of validity of the contact restrictions to contain the Corona pandemic (SARS-CoV-2 Containment Measures Ordinance) in such a way that they presuppose, as an unwritten element of the offense, the reasonable communal household management of the benefit recipient with other persons accommodated in the collective accommodation. If this is not the case, the benefit recipient must be granted benefits in the amount of RBS 1.
Source: socialcourtsability.de
Note:
Lower Saxony-Bremen State Social Court – Case No.: L 8 AY 32/20 B dated May 4, 2020
Legal provisions: Section 3a AsylbLG, Section 2 AsylbLG – Keywords: Legal aid, standard benefit level 2 in collective accommodations
Guidance (Editor):
Granting of legal aid, because
the compatibility of this benefit calculation according to Section 3a Paragraph 1 No. 2 lit. b and Paragraph 2 No. 2 lit. b of the Asylum Seekers' Benefits Act (or according to Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act) with the fundamental right to a guaranteed minimum standard of living in accordance with human dignity (Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law) is – measured against the procedural requirements established by the jurisprudence of the Federal Constitutional Court (see in detail Federal Constitutional Court of 9 February 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – juris Rn. 133-139) – controversially discussed in case law and literature (Social Court Landshut, decision of 24 October 2019 – S 11 AY). 64/19 ER – juris para. 53 et seq.; Social Court of Hanover, decision of 20 December 2019 – S 53 AY 107/19 – juris para. 6 et seq.; Social Court of Frankfurt, decision of 14 January 2020 – S 30 AY 26/19 ER – juris para. 16 et seq.; Social Court of Munich, decision of 10 February 2020 – S 42 AY 82/19 ER – juris para. 53 et seq.; Frerichs in jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG para. 42 et seq.). In some cases, a constitutionally compliant interpretation of the regulations is advocated, according to which the application of needs level 2, as an unwritten criterion, presupposes the actual and verifiable communal household management of the benefit recipient with other persons housed in the collective accommodation (Social Court Landshut, judgment of 23 January 2020 – S 11 AY 79/19 ER – juris para. 40 et seq.; Social Court Landshut, judgment of 28 January 2020 – S 11 AY 3/20 ER – juris para. 63 et seq.; Social Court Munich, judgment of 10 February 2020 – S 42 AY 82/19 ER – juris para. 56 et seq.; see also Frerichs in jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG para. 44).
See also:
Perversion of justice in the handling of standard benefit reductions for refugees?
Since September 1, 2019, the Asylum Seekers' Benefits Act (AsylbLG) has been significantly tightened. Single individuals in communal accommodations now receive only 90% of the basic allowance under the AsylbLG. Even 100% is extremely low at €351 per month; 90% of that is only €316.
Many courts have already declared this blatant shortfall in the minimum subsistence level unconstitutional and have granted at least preliminary injunctions granting higher benefits (especially: Saxony Higher Social Court, Landshut Social Court, Hanover Social Court, Freiburg Social Court, Frankfurt/Main Social Court, Leipzig Social Court, Munich Social Court). Other courts generally reject preliminary injunction applications in these cases, but consider a temporary suspension of benefit reductions absolutely essential, at least during the pandemic (especially: Kassel Social Court and Cottbus Social Court).
At the Berlin Social Court, almost all chambers responsible for Asylum Seekers' Benefits Act (AsylbLG) cases refuse any engagement with this issue. The trick is that they argue that the full subsistence minimum can never be achieved in preliminary injunction proceedings under any circumstances. Benefits below the subsistence minimum are deemed acceptable on a temporary basis. The only point of contention at the Berlin Social Court is the question of what specific reductions in benefits are still acceptable – the range extends from 10% to 30%; the extreme position is that an application for preliminary injunction can only be successful if the benefits fall below €195.66 (the benefit rate according to Section 1a of the Asylum Seekers' Benefits Act) (most recently: Berlin Social Court, decision of May 12, 2020 – S 146 AY 60/20 ER).
More information: tacheles-sozialhilfe.de
3.2 – Social Court Neuruppin, decision of March 23, 2020 (S 27 AY 3/20 ER):
Principle by Dr. Manfred Hammel:
A violation of the obligation of every foreigner, arising from Section 48 Paragraph 3 Sentence 1 of the Residence Act, to cooperate in obtaining the identity document and providing the documents necessary for establishing identity and nationality in order to eliminate existing obstacles to departure, generally leads to a restriction of entitlement pursuant to Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act for persons entitled to benefits under Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act due to a temporary suspension of deportation under Section 60a Paragraph 2 Sentence 1 of the Residence Act.
Proof of an unsuccessful visit to the embassy does not document sufficient efforts.
Due to the outbreak of the so-called Corona pandemic and the sweeping restrictions on public life imposed in response to this dangerous situation, it is objectively impossible for a foreigner whose stay is merely tolerated and who is advised not to leave his accommodation to carry out the necessary cooperation.
For the duration of this suspension of these obligations to cooperate, the financial restriction of benefits associated with the breach of this obligation also ceases to apply.
Note:
No reduction in benefits if cooperation is impossible due to COVID-19 containment measures.
More information: www.asyl.net
3.3 – Social Court Münster, decision of April 21, 2020 – S 20 AY 4/20 ER
Guiding principle by Dr. Manfred Hammel:
The duty to cooperate pursuant to Section 15 Paragraph 2 No. 4 of the Asylum Act only applies if foreigners actually possess a passport or passport substitute, which must be presented to the competent authority. If it is factually unclear whether foreigners permanently residing in Germany are still in possession of their passports, the authorities may neither affirm a violation of this duty to cooperate nor impose a restriction of benefits pursuant to Section 1a Paragraph 5 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act.
In cases of proven passport destruction of persons entitled to benefits under Section 1 Paragraph 1 Numbers 4 to 6 of the Asylum Seekers' Benefits Act (AsylbLG), a restriction of entitlement in accordance with Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) may be considered.
3.4 – Administrative Court of Münster, decision of 12 May 2020 (5 L 399/20):
Guiding principle by Dr. Manfred Hammel:
On the affirmation of the applicability of Section 49 Paragraph 2 of the Asylum Act in the case of an asylum seeker accommodated in a central accommodation facility within the meaning of Sections 44 et seq., 47 Paragraph 1 of the Asylum Act for reasons of public health, which considers the termination of the obligation to reside in this accommodation facility for the purpose of protection against infection with the coronavirus Sars-CoV-2 as a significant interest to be recognized in consideration of infection control law.
It would not only contradict the Corona Protection Ordinance of the state of North Rhine-Westphalia and the recommendations of the Robert Koch Institute on contact restrictions and good hand hygiene if the area of asylum seeker accommodations were treated differently, but above all it would also run counter to the central meaning and purpose of these regulations and recommendations, namely the prevention of the spread of this coronavirus.
This applies particularly if, due to the cramped living conditions in the reception facility, it is not possible to maintain the minimum distance of 1.5 m between two people, and the sanitary facilities and other communal facilities have to be shared with other residents, and the applicant belongs to a group of people who are considered particularly vulnerable due to his chronic hepatitis B.
4. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
4.1 – Leipzig Administrative Court, decision of 18 May 2020 (5 L 211/20 A):
Guiding principle Dr. Manfred Hammel:
A right to accommodation in a single room outside a reception facility (§ 47 para. 1 AsylG in conjunction with § 49 para. 2 AsylG) cannot be derived from § 1 SächsCoronaSchVO.
The principles of Section 1 of the Saxon Corona Protection Ordinance (SächsCoronaSchVO) also apply to initial reception centers for asylum seekers, although the stay in such a facility does not constitute a stay in public space within the meaning of Section 2 of the Saxon Corona Protection Ordinance (SächsCoronaSchVO).
This is a household within the meaning of the Saxon Corona Protection Ordinance, which should not be interfered with on the basis of the law.
In hotels and accommodation establishments, the occupancy of bedrooms by several members of one's own household and, in addition, members of another household is still permitted.
If an applicant does not belong to a risk group that requires special protection beyond the generally applicable standards, then staying in a double room in a reception facility is reasonable for him, provided that the requirements for the protection of the residents according to the Saxon Corona Protection Ordinance are implemented there.
4.2 – Leipzig Administrative Court, decision of April 22, 2020 (3 L 204/20.A):
Guiding principle Dr. Manfred Hammel:
The termination of the applicant's obligation to reside in accommodation pursuant to Section 47 Paragraph 1 Sentence 1 of the Asylum Act is necessary not only for reasons of epidemic prevention and thus a public interest (Section 49 Paragraph 2 of the Asylum Act), but also to protect the asylum seeker himself from infection with the SARS-CoV-2 virus.
The contact restrictions stipulated in Section 1 of the Saxon Corona Ordinance must be observed "wherever possible" and "in all areas of life." This also applies to asylum seeker accommodations. Anything else would contradict the actual purpose of this Corona Ordinance, which is to prevent the spread of the SARS-CoV-2 coronavirus.
Asylum seekers are more susceptible to [something] due to the stresses they have suffered during their flight and the need to reorient themselves in a foreign country
dangerous infectious diseases as a national. The local organization of the stay in a reception facility does not meet the requirements of § 1 SächsCoronaVO if an asylum seeker is housed with another person in a two by two meter room, and sanitary facilities such as the kitchen are provided for the shared use of a total of 50 people.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
