1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, Judgment of March 19, 2020 (B 4 AS 1/20 R):
Guiding principle Dr. Manfred Hammel:
The expenses incurred by a recipient of unemployment benefit II for her training as a non-medical practitioner do not constitute a need within the meaning of the benefits for securing her livelihood according to §§ 19 ff. SGB II.
There is no legal basis for this claim under the German Social Code, Book II (SGB II).
Benefits for integration into employment under Sections 16 et seq. of the German Social Code, Book II (SGB II) constitute a separate subject of dispute from benefits for securing subsistence. Expenses for clothing claimed with reference to Section 3 Paragraph 2 of the German Regulation on Unemployment Benefit II (Alg II-V) do not constitute deductible business expenses if the clothing is not typical work attire but merely "civilian clothing".
According to Sections 11 et seq. of the German Social Code, Book II (SGB II), the law governing basic income support for job seekers does not allow for the offsetting of income and losses from multiple businesses; therefore, a "horizontal loss offset" is not justifiable.
However, a material assessment is always of decisive importance, which depends on whether the income generated from a specific activity is directly related to the claimed expenses. A clearly identifiable relationship, a necessary connection between the individually quantifiable expenses and the income, must be demonstrable (§ 11b para. 1 sentence 1 no. 5 SGB II). This is required by the principle of subsidiarity, which also applies to the crediting of income (§§ 2 para. 2 and 3 para. 3, first half-sentence SGB II). Public funds may not be used to promote an activity in which losses outweigh profits due to proven unprofitability. This applies all the more to expenses incurred in connection with a self-employed activity that has not yet been carried out but is only intended for the future.
The principle that income actually available to them during the period in which they need to be covered (§ 11 para. 1 sentence 1 SGB II) must always be used to cover their needs also applies to self-employed persons.
The German Social Code, Book II (SGB II) and the Regulation on Unemployment Benefit II (Alg II-V) do not contain a hardship provision corresponding to Section 10 Sentence 2 of the Ordinance on the Implementation of Section 82 of the German Social Code, Book XII (SGB XII).
The deduction option under Section 11b Paragraph 1 Sentence 1 Number 5 of the German Social Code, Book II (SGB II) sets a separate framework compared to deductible business expenses under tax law. According to Section 9 Paragraph 6 of the German Income Tax Act (EStG), expenses incurred by a taxpayer for their education are only deductible business expenses if the taxpayer has previously completed initial vocational training or if the training takes place within the context of an employment relationship.
Unemployment benefit II (ALG II) is generally not intended to provide subsidiary support for vocational training in cases where the eligibility requirements under the Federal Training Assistance Act (BAföG) are not met (§ 7 para. 5 SGB II). The legislator expects, in accordance with the constitution, that applicants may discontinue their training in order to use their labor to finance their necessary living expenses.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Saxon State Social Court, Judgment of 06.02.2020 – L 3 AS 535/18 – Appeal allowed
Regarding the question of whether an employer's reimbursement of travel expenses for journeys undertaken by an employee in the course of their employment for the employer using their private vehicle is eligible for reimbursement
Guiding principle (Editor):
Reimbursement of travel expenses by the employer constitutes income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), but it does not represent further earned income.
Guidance (Editor)
1. Reimbursement of travel expenses is not a so-called earmarked benefit pursuant to Section 11a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II).
2. It is also not a reimbursement of expenses pursuant to Section 670 of the German Civil Code (BGB), which, as a so-called "pass-through item", would not lead to an increase in value (see also LSG Saxony-Anhalt, judgment of September 13, 2017 – L 5 AS 8/16).
3. However, the reimbursement of travel expenses does not constitute additional earned income. Rather, it is income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), from a source of income independent of earned income. This is because the income received is consideration for the plaintiff's provision of his private motor vehicle to his employer.
Source: socialcourtsability.de
2.2 – Saxon State Social Court, decision of 04.06.2020 – L 7 AS 354/20 B ER
Guidance (Editor)
1. For the assumption of special hardship in the case of assets (§ 9 para. 3 sentence 1 no. 6 alternative 2 SGB II, cf. e.g. BSG v. 20.02.2014 – B 14 AS 10/13 R – Rn. 45) a general reference to their use for a future planned self-employment is not sufficient.
2. A so-called fictitious consumption of assets is not taken into account (see only BSG v. 25.04.2018 – B 14 AS 15/17 R).
Source: socialcourtsability.de
2.3 – Berlin-Brandenburg State Social Court, decision of May 13, 2020 – L 19 AS 444/20 NZB – legally
binding; summons to report; value of the subject matter of the appeal; appeal against the refusal of leave to appeal; time limit for appeal in the case of incorrect legal remedy instructions; procedural judgment instead of a judgment on the merits; declaratory judgment action
Principle (Juris):
In the context of an appeal against the denial of leave to appeal (procedural judgment instead of a judgment on the merits), the dismissal of a declaratory judgment action as inadmissible for lack of a legitimate interest pursuant to Section 131 Paragraph 1 Sentence 3 of the Social Court Procedure Act (SGG) constitutes a procedural error pursuant to Section 144 Paragraph 2 No. 3 SGG only if the challenged decision misapplied the requirements for the legitimate interest in a declaratory judgment and the case was therefore not decided on its merits. If, however, the lack of recognition of the legitimate interest is based on an application of substantive law, even its erroneous application does not justify the assumption of a procedural error pursuant to Section 144 Paragraph 2 No. 3 SGG.
Source: socialcourtsability.de
2.4 – North Rhine-Westphalia State Social Court, decision of 03.02.2019 – L 7 AS 1376/19 – legally
binding. The court answered in favor of the question of whether tips earned in connection with employment as a taxi driver can be counted as earned income and thus reduce the need for benefits.
Guiding principle (Editor):
Tips are not considered income that is not to be taken into account according to § 11a para. 5 SGB II.
Guidance (Editor)
1. The earned income received by the plaintiff as tips must be taken into account as reducing the need for assistance.
2. Earned income in the form of tips must also be treated as income under Section 11a of the German Social Code, Book II (SGB II). In particular, preferential treatment under Section 11a, Paragraph 5 of the SGB II is not applicable.
3. It is consistent that tips given in connection with an exchange agreement, for example in the catering industry, the taxi business or the hairdressing trade, are to be included in the assessable income of the activity performed (similarly SG Landshut judgment of 27.09.2017 – S 11 AS 261/16; Schmidt, in: Schlegel-Voeltzke, juris-PK-SGB XII, 2nd edition 2014, § 82 para. 60 – as of 13.08.2018; contra SG Karlsruhe judgment of 30.03.2016 – S 4 AS 2297/15).
Source: socialcourtsability.de
2.5 – North Rhine-Westphalia State Social Court, decision of 21.04.2020 – L 7 AS 436/20 B ER legally binding:
No community of need if spouses only married because the applicant was pregnant, but live separately.
Guidance (Editor)
1. If, at or after their marriage, the spouses have mutually agreed on a lifestyle that does not include cohabitation, the mere intention not to establish cohabitation in the foreseeable future is insufficient to establish legal separation under family law principles. Rather, one spouse must regularly demonstrate an outwardly recognizable intention not to establish cohabitation because they reject the marital union (§ 1567 para. 1 sentence 1 of the German Civil Code). Even in cases of physical separation, the decisive factor for determining legal separation is whether a close personal, emotional, and economic community exists that meets the requirements of § 1353 para. 1 sentence 2 of the German Civil Code. Legal separation does not require that the spouses have no contact whatsoever, engage in no joint activities, or maintain a complete separation.
2. The applicants have credibly demonstrated that a shared household cannot be established because the partners reject a cohabiting relationship. It is credible and undisputed that the husband and the applicant have never lived in the same household. Given that the applicant (1) has two other children, not fathered by the husband, who live with her in an apartment, the couple's decision not to live together and their claim that they only married because of the pregnancy appear plausible.
Source: socialcourtsability.de
3. Decisions of the State Social Courts and Social Courts on Asylum Law
3.1 – North Rhine-Westphalia State Social Court, decision of 22 May 2020 – L 20 AY 7/20 B ER – legally binding
The question, within the framework of preliminary legal protection proceedings, is whether the benefits to the applicant are to be reduced in accordance with Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
Guidance (Editor)
1. Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not require – as an unwritten element of the offense – that a return to the country responsible for their asylum procedure (here: Italy) is possible and reasonable for the person concerned. If the Senate has assumed such an unwritten element of the offense for the restriction of benefits under Section 1a Paragraph 4 Sentence 2 of the AsylbLG (in the case of a preliminary decision by way of a balancing of interests) (Senate decision of March 27, 2020 – L 20 AY 20/20 B ER), then this provision applies to those entitled to benefits under Section 1 No. 1 or No. 1a of the AsylbLG, whose asylum application in Germany has therefore not yet been decided. Section 1a paragraph 7 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), however, does not permit the assumption of an unwritten element of the offense that makes the restriction of benefits dependent on further conditions, given its clear wording (see also the Senate's decision of March 13, 2020 – L 20 AY 48/19 B ER; but see the restrictive decisions of the Social Court of Munich of February 10, 2020 – S 42 AY 82/19 ER, para. 37, and the Social Court of Landshut of January 28, 2020 – S 11 AY 3/20 ER, paras. 48 et seq., and of January 23, 2020 – S 11 AY 79/19 ER, paras. 28 et seq., which assume a teleological reduction to the effect that the foreigner must be guilty of conduct contrary to his obligations).
2. The inapplicability of Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) to foreigners tolerated under Section 60a of the Residence Act (AufenthG) results from the internal structure of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
3. In the main proceedings, however, constitutional concerns regarding the restriction of benefits pursuant to Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) will likely need to be examined more closely. These concerns are plausible because this restriction of benefits is likely to infringe upon the applicant's fundamental right to a guaranteed minimum standard of living that ensures human dignity.
Source: socialcourtsability.de
3.2 – LSG Mecklenburg-Vorpommern, decision of 11 May 2020 (L 9 AY 22/19 B ER):
Significant concerns exist regarding the constitutionality of the benefit levels regulated in Section 3a Paragraph 1 Number 2 Letter a) and Section 3a Paragraph 2 Number 2 Letter a) of the Asylum Seekers' Benefits Act for adult benefit recipients without a partner who are housed in reception centers, communal accommodations, or comparable facilities. Entitlement to standard benefit level 1 in communal accommodation (Editor's Guide)
Guiding principle Dr. Manfred Hammel:
There are already considerable doubts about the constitutionality of the new and special needs level regulated in § 3a AsylbLG for adult beneficiaries under § 1 para. 1 AsylbLG who are housed in reception facilities, communal or comparable accommodations.
The legislator simply asserts that the aspect of shared finances from "one pot", which is of significant importance for people living in a marriage-like relationship, could also be applied to a clientele who merely share certain premises in communal accommodations (such as the kitchen, sanitary facilities and common rooms).
There is no evidence to support the existence of these specific synergy effects, which is why they should be considered rather speculative.
Section 3a paragraph 1 number 2b) of the Asylum Seekers' Benefits Act (AsylbLG) can only be considered compatible with the fundamental right to a dignified minimum standard of living under Article 1 paragraph 1 of the Basic Law (GG) in conjunction with Article 20 paragraph 1 of the Basic Law (GG) if the standard benefit level 2 can be applied in accordance with Section 8 paragraph 1 sentence 1 number 2 of the Standard Benefit Determination Act (RBEG), because eligible persons regularly manage their resources jointly with other people housed in communal accommodation by shopping together and preparing food together, resulting in clearly identifiable synergy effects due to lower acquisition and preparation costs.
The public authority bears the full burden of proof for the existence of such circumstances.
Source: www.landesrecht-mv.de
Note:
Several German social courts have already ruled this regulation unconstitutional 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).
3.3 – Hildesheim Social Court – Case No.: S 42 AY 73/20 ER dated June 4, 2020
Legal provisions: Section 2 Asylum Seekers' Benefits Act (AsylbLG), Section 1a AsylbLG – Keywords: Entitlement to adjustments, including benefits under Section 2 AsylbLG, Lebanon, embassy, passport procurement
Guidance (Editor):
Obligation by way of an interim injunction to grant the applicant provisionally privileged benefits pursuant to Section 2 Paragraph 1 AsylbLG in conjunction with SGB XII analogously, because the failure to leave voluntarily after being granted a temporary suspension of deportation does not constitute an abuse of rights.
Source: www.anwaltskanzlei-adam.de
3.4 – SG Aurich, decision of 05.06.2020 – S 23 AY 13/20 ER
Regarding question RBS 1 concerning AsylbLG in communal accommodations during the Corona pandemic.
Guidance (Editor)
on need level 1 instead of 2 in communal accommodations during the Corona pandemic.
Law firm specializing
in migration law and social law
Lawyers Goritzka, Sürig and Anuschewski,
Außer der Schleifmühle 54,
28203 Bremen
3.5 – SG Oldenburg, decision of 09.06.2020 – S 25 AY 21/20 ER
Reduction of standard benefits under the Asylum Seekers' Benefits Act (AsylbLG) in communal accommodations during the pandemic.
Guidance (Editor) on
Asylum Seekers' Benefits Act (AsylbLG) needs level 1 instead of 2 in communal accommodations during the pandemic.
Law firm specializing
in migration law and social law
Lawyers Goritzka, Sürig and Anuschewski,
Außer der Schleifmühle 54,
28203 Bremen
3.6 – Social Court Berlin, decision of 19 May 2020 (S 90 AY 57/20 ER):
Guiding principle Dr. Manfred Hammel:
During the period of validity of the contact restrictions and distancing rules issued to contain the spread of the coronavirus, it cannot be officially assumed that persons living in communal accommodation pursuant to Section 53 Paragraph 1 Sentence 1 of the Asylum Act and entitled to benefits pursuant to Section 1 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) are sharing resources in accordance with Section 3a Paragraph 1 No. 2b) of the Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 No. 2b) of the Asylum Seekers' Benefits Act (AsylbLG).
Refugees housed in collective accommodations are required to exercise particular caution and adhere to the prescribed hygiene measures and social distancing rules, as their specific living situation puts them at particular risk of infecting themselves and others
4. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
4.1 – Second-class families: Child bonus depends on residency status
Continue here: www.ggua.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
