1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on social assistance under the German Social Code, Book XII (SGB XII)
1.1 – Federal Social Court, judgment of February 20, 2020 (B 14 AS 3/19 R):
Guiding principle Dr. Manfred Hammel:
Whether and to what extent an appellant is entitled to reimbursement from the job center for expenses incurred in hiring a lawyer is determined in accordance with Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), by the success of the appeal, provided that legal assistance was necessary in the preliminary proceedings (Section 63 Paragraph 2 SGB X).
Due to the complexity of social law, the involvement of legally qualified representatives is usually necessary, also to ensure a fair procedure and a certain "equality of arms" between the parties involved.
Section 63 of the German Social Code, Book X (SGB X) implements the individual's right to equal access to justice by linking cost reimbursement to the success of the objection.
Since the claim for reimbursement of costs under Section 63 SGB X is covered by the obligation of the opposing party to pay compensation pursuant to Section 9 Sentence 1 BerHG, the authorized representative has a claim against the job center for payment of his cost invoice pursuant to Section 9 Sentence 2 BerHG based on transferred rights.
The offsetting of the appellant's claims for reimbursement of costs pursuant to Section 63 of the German Social Code, Book X (SGB X) with claims for reimbursement by the Jobcenter due to overpayment of benefits to secure subsistence pursuant to Sections 19 et seq. of the German Social Code, Book II (SGB II) violates a normative prohibition of offsetting.
1.2 – BSG, Judgment of February 20, 2020 (B 14 AS 52/18 R):
Guiding principle Dr. Manfred Hammel:
The meaning and purpose of Section 37 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II), especially when considering its legislative history, strongly argues against relying solely on the actual date of application when determining the value of applicants' financial circumstances, regardless of its legal effect.
Section 37 paragraph 2 sentence 2 of the German Social Code, Book II (SGB II) is intended to give effect to the principle of subsidiarity (Section 3 paragraph 3, first half-sentence of the SGB II) by ensuring that income (Section 11 paragraph 1 sentence 1 of the SGB II) that accrues to employable benefit recipients within the month prior to the application (Section 37 paragraph 1 sentence 1 of the SGB II) is to be taken into account as an inflow of capital that reduces their need for benefits.
Section 12, paragraph 4, sentence 2 of the German Social Code, Book II (SGB II) does not lead to a different interpretation here. There is no legal basis for disregarding significant changes in the amount of existing assets (Section 12, paragraph 1 SGB II), at least for the current calendar month.
Section 37 paragraph 2 sentence 2 of the German Social Code, Book II (SGB II) specifies the first day of the application month as the relevant (starting) date for the asset assessment, but does not address changes in the asset situation and does not regulate an assessment date for calendar months, insofar as these are not the application month.
1.3 – Federal Social Court (BSG), Judgment of 03.07.2020 – B 8 SO 15/19 R
Social law – Interest on monetary benefit claims
Entitlement to interest on back payments of social assistance.
Guidance (Editor)
1. Public authorities must generally also pay interest on back payments of social benefits.
2. Claims for monetary benefits accrue interest after the end of one calendar month following their due date. Claims for social benefits become due upon their accrual. They accrue as soon as the substantive legal requirements for entitlement, as defined by law, are met.
Source: www.bsg.bund.de
1.4 – BSG, judgment of July 3, 2020 – B 8 SO 27/18 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – income-based support – grants from the Integrated Service Workshop (IAW)
Guidance note (Editor)
1. The donations are not tax-exempt donations from independent welfare organizations.
2. However, the income in question is a gift within the meaning of Section 84 Paragraph 2 of the German Social Code, Book XII (SGB XII), which is provided by another person without any legal or moral obligation to do so. Such gifts should be disregarded as income insofar as their consideration would constitute a particular hardship for the benefit recipient in the individual case.
3. The concept of "particular hardship" does not allow for a fixed upper limit based on specific income thresholds up to which a grant would be disregarded.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court Berlin-Brandenburg, decision of 15 June 2020 – L 31 AS 585/20 B ER – legally binding
The exclusionary effect of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) constitutes a particular hardship under Section 27 Paragraph 3 of the SGB II until the conclusion of preliminary legal protection proceedings before the administrative court with regard to benefits under the Federal Training Assistance Act (BAföG).
Guidance (Editor)
1. According to Section 27 Paragraph 3 of the German Social Code, Book II (SGB II), the applicant is entitled to a loan with regard to standard needs and accommodation costs because the exclusion from benefits under Section 7 Paragraph 5 of the SGB II constitutes a particular hardship for him, at least until the conclusion of the preliminary legal protection proceedings for benefits under the Federal Training Assistance Act (BAföG) before the Administrative Court.
2. If the applicant were unable to find employment, he would have to abandon his studies in order to be able to claim benefits under Book II of the German Social Code (SGB II), as otherwise the exclusion under Section 7 Paragraph 5 of Book II of the German Social Code (SGB II) would apply. In that case, a review of the denial of BAföG benefits due to insufficient academic performance would also no longer be possible.
3. This legal situation is incompatible with the constitutional guarantee of effective legal protection (Article 19, Paragraph 4 of the Basic Law). It follows that the exclusionary effect under Section 7, Paragraph 5 of the German Social Code, Book II (SGB II) constitutes a particular hardship in the present case, which must lead to the granting of the loan, assuming a reduction of discretion to zero.
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 26 May 2020 – L 37 SF 149/19 EK AS
Principle (Juris)
1: If the underlying proceedings – whether in connection with a decision to revoke or withdraw a claim, or within the framework of a final determination of performance – essentially concern claims for reimbursement, the significance of the proceedings cannot be generally considered below average. In addition to the suspensive effect of the action, the amount of reimbursement claimed and the question of whether there are indications that the action was brought essentially to delay repayment of the claim must also be taken into account.
2. With regard to the amount of the claim, it must be taken into account that the objective scope of the claim differs for recipients of (supplementary) basic income support. This is because subsistence-level benefits are regularly of above-average importance to their recipients (Federal Social Court, Judgment of September 3, 2014 – B 10 ÜG 2/14 R – juris, para. 39), as there may be a lack of income to cover living expenses at the subsistence level, which must be compensated for through cost-cutting measures or the taking out of private loans (Federal Social Court, Judgment of February 12, 2015 – B 10 ÜG 11/13 R –, juris, para. 29). Accordingly, even the repayment of smaller amounts may pose greater difficulties for these recipients.
3. The extent to which the court is entitled to preparation and deliberation time depends on the individual case. It cannot be assumed that the preparation and deliberation time should regularly be extended beyond twelve months if the case essentially concerns reimbursement disputes.
4. Whether, in cases where the main issue in the proceedings at issue is claims for reimbursement, redress can be provided in another way pursuant to Section 198 Paragraph 4 of the Courts Constitution Act (GVG) by way of a finding that the length of the proceedings was unreasonable, depends on the individual case. In this respect, it must be taken into account how important the proceedings were for the plaintiff and whether he contributed to their prolongation.
5. The legal fees incurred for an out-of-court settlement attempt shall also be reimbursed if this application was only made in connection with an application for legal aid in preparation for a compensation claim.
Source: socialcourtsability.de
2.3 – Berlin-Brandenburg State Social Court, Judgment of 26 May 2020 – L 37 SF 197/19 EK AS
Compensation in the amount of EUR 5,000.71 plus interest at a rate of five percentage points is granted – Section 198 Paragraph 1 Sentence 1 of the Courts Constitution Act (GVG)
Principle (Juris)
1. If the main proceedings in dispute, within the context of a final determination of performance, essentially concern claims for reimbursement, the significance of the proceedings cannot be categorically considered below average. In addition to the suspensive effect of the action, the amount of reimbursement claimed and the question of whether there are indications that the action was brought primarily to delay repayment of the claim must also be taken into account. The latter should generally be considered refuted if a plaintiff in the main proceedings achieves at least a not insignificant partial success and/or has not caused any procedural delays himself.
2. With regard to the amount of the claim, it must be taken into account that the objective scope of the claim differs for recipients of (supplementary) basic income support. This is because subsistence-level benefits are regularly of above-average importance to their recipients (Federal Social Court, Judgment of September 3, 2014 – B 10 ÜG 2/14 R – juris, para. 39), as there may be a lack of income to cover living expenses at the subsistence level, which must be compensated for by cost-cutting measures or taking out private loans (Federal Social Court, Judgment of February 12, 2015 – B 10 ÜG 11/13 R –, juris, para. 29). Accordingly, even the repayment of smaller amounts may pose greater difficulties for these recipients.
3. The extent to which the court is entitled to preparation and deliberation time depends on the individual case. It cannot be assumed that the preparation and deliberation time should regularly be extended beyond twelve months if the case essentially concerns reimbursement disputes.
4. Whether, in cases where the main issue in the proceedings at issue is claims for reimbursement, redress can be provided in another way pursuant to Section 198 Paragraph 4 of the Courts Constitution Act (GVG) by way of a finding that the length of the proceedings was unreasonable, depends on the individual case. In this respect, it must be taken into account how important the proceedings were for the plaintiff and whether he contributed to their prolongation.
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision of 04.06.2020 – L 18 AS 826/20 B ER – legally binding
Preliminary legal protection; assurance; accommodation costs; rental deposit
Obtaining information only until a lease agreement is concluded
Guidance (Editor)
1. No guarantee to cover the rental deposit if the rental agreement has already been concluded.
2. The conclusion of a lease agreement extinguishes any previously unfulfilled claim for a guarantee of the assumption of the rental deposit and settles it in this sense. Even though the recipient's continued interest in the subsequent issuance of the assurance, given its importance as a prerequisite for the assumption of the rental deposit, cannot be denied, the benefit provider is no longer obligated to issue it in such a case because, according to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), the assurance is only suitable for establishing an entitlement to the assumption of the rental deposit if it is issued before the conclusion of a tenancy agreement (see Higher Social Court (LSG) of Lower Saxony-Bremen, decision of June 5, 2008 – L 9 AS 541/06; Higher Social Court (LSG) of Lower Saxony-Bremen, decision of April 23, 2008 – L 9 AS 57/08 ER; Higher Social Court (LSG) of Berlin-Brandenburg, decision of January 10, 2007 – L 5 B 1221/06 AS ER).
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 08.06.2020 – L 18 AS 1641/19
DÖFA; Austrian; homeless person; benefits to secure livelihood
No exclusion from ALG II benefits for Austrian citizens.
Guidance (Editor):
The plaintiff, as an Austrian national, can invoke the DÖFA – which was in force before Austria's accession to the European Union and has continued to apply since then (see Article 351 of the Treaty on the Functioning of the European Union as amended by the Treaty of Lisbon [TFEU], which entered into force on 1 December 2009 – formerly Article 307 of the Treaty establishing the European Community [ECT]) – with the consequence that the exclusion of benefits does not apply to him.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Leipzig, Judgment of 18.03.2020 – S 17 AS 405/19
Travel expenses also for cyclists
Guiding principle (Editor):
Reimbursement of travel expenses for attending appointments at the Leipzig Job Center is generally also available to cyclists.
The job center only has discretion regarding the amount of the reimbursement.
Summary:
According to the Social Court, the defendant job center may neither completely exclude the consideration of these costs nor adopt de minimis thresholds from the administrative regulations of the Federal Travel Expenses Act. However, the court ruled that the specific costs of cycling to an appointment are reimbursable at the discretion of the Leipzig job center. The plaintiff is not entitled to the same reimbursement as someone using a motor vehicle. Furthermore, only costs directly related to the journey are to be considered. Expenses for weatherproof clothing, increased food intake, or showering after cycling are not included, as they are considered part of the plaintiff's individual lifestyle.
Background: Pursuant to Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 Paragraph 4 of the German Social Code, Book III (SGB III), necessary travel expenses incurred in connection with a reporting appointment can be reimbursed upon application. The defendant job center, exercising its discretion under the statutory provisions, issued an administrative regulation that effectively binds the administration to itself. Discretionary decisions made by social security agencies are subject to only limited review by the social courts.
The verdict is legally binding.
Source: Press release of the Leipzig Social Court No. 3/2020 dated July 2, 2020 and see also press release of the Leipzig Social Court
3.2 – Cologne Social Court, Decision of 10 June 2020 – S 8 AS 1817/20 ER and Cologne Social Court, Decision of 24 June 2020 – S 32 AS 2150/20 ER.
In two decisions dated 10 June and 24 June 2020, the Cologne Social Court, for the first time, ordered a job center to cover the costs of a school computer and printer, amounting to €220 and €240 respectively, as a special need due to the coronavirus pandemic pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) (Cologne Social Court, 10 June 2020 – S 8 AS 1817/20 ER and 24 June 2020 – S 32 AS 2150/20 ER).
Continue to the source with both full texts: Thomé Newsletter 22/2020 from July 3, 2020
3.3 – Duisburg Social Court, Judgment of 29 May 2020 – S 49 AS 3304/16
Basic income support for job seekers – consideration of income – proceeds from a criminal offense – distinction between income and assets – legality of the termination of benefits to secure subsistence under the German Social Code, Book II (SGB II)
Guidance note (editor)
on the crediting of income from a criminal offense, here affirmed.
Note to the Court:
The question of whether monetary payments related to criminal offenses are to be considered income under Sections 11 et seq. of the German Social Code, Book II (SGB II), is assessed inconsistently in case law and legal literature (for the existence of income that can be taken into account, see, for example: Hamburg Higher Social Court, Judgment of June 4, 2019 – L 4 AS 203/16, juris, para. 54 et seq.; Saxony Higher Social Court, Judgment of November 8, 2018 – L 7 AS 1086/14, juris, para. 41; Berlin-Brandenburg Higher Social Court, Decision of August 30, 2017 – L 31 AS 1462/17 B ER, juris, para. 30 et seq.; Hesse Higher Social Court, Decision of December 7, 2005 – L 7 AS 81/05 ER, juris). Rn. 19, 45; Lange, jurisPR-SozR 2/2019 Note 1; Löns, in: Löns/Herold-Tews, SGB II, 3rd ed. 2011, § 11 SGB II, Rn. 13; Schmidt, in: Eicher/Luik, SGB II, 4th ed. 2017, § 11 SGB II, Rn. 18, 23; in this sense, also expressly for the Twelfth Book of the Social Code [SGB XII]: Schmidt, in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 82 SGB XII (as of 01.02.2020), Rn. 30 with further references; already regarding the concept of income under the former BSHG: Frankfurt Administrative Court, Decision of 20.08.2003 – 3 G 3283/03, juris, para. 6; contra: LSG Berlin-Brandenburg, decision of 09.01.2017 – L 23 SO 327/16 B ER, juris, paras. 46 ff.; SG Berlin, decision of 21.10.2016 – S 146 SO 1487/16 ER, para. 35; SG Aachen, judgment of 24.11.2015 – S 14 AS 128/15, juris, para. 42; Söhngen, in: Schlegel/Voelzke, jurisPK-SGB II, 5th ed., § 11 (as of 01.03.2020), para. 54; also critical: Schaer, jurisPR-SozR 17/2019 note 4; Klerks, info also 2019, 222, 225 f.; left open: LSG Berlin-Brandenburg, decision of 21.12.2016 – L 15 SO 301/16 B ER, juris, para. 39 ff.; differentiating: Hengelhaupt, in: Hauck/Noftz, SGB, 12/19, § 11 SGB II, para. 230 f., 568).
Source: socialcourtsability.de
3.4 – Wiesbaden Social Court, Judgment of 15 May 2020 – S 5 AS 565/19
Guidance (Editor):
The district of Limburg has no coherent concept because the comparison area was determined unlawfully.
Source: socialcourtsability.de
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – State Social Court of Mecklenburg-Western Pomerania, Decision of 25 May 2020 – L 2 AL 37/19 B ER
Refusal or revocation of a permit for temporary employment due to the lack of reliability of the temporary employment agency
Source: www.landesrecht-mv.de
4.2 – Social Court Karlsruhe, Judgment of 30 January 2020 (legally binding) – S 11 AL 3366/18
Even taking into account existing prior knowledge, the suitability prognosis for an assigned measure for activation and vocational integration should not be subject to excessive demands.
Source: Sozialgericht-karlsruhe.justiz-bw.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Hessian State Social Court, decision of 02.06.2020 – L 4 AY 7/20 B ER
§ 1a para. 4 AsylbLG requires a constitutionally compliant interpretation.
Section 1a paragraph 4 sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) requires, as an unwritten element of the offense, that the return of the person concerned to the country granting protection is possible and reasonable for factual and legal reasons.
Guidance (Editor)
1. If, based on the judgment of the Federal Constitutional Court of November 5, 2019 – 1 BvL 7/16 –, juris Rn. 121, 123 ff., 130 f, one assumes the possibility of a constitutionally compliant interpretation of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), despite its repressive objective, an unwritten element of the offense is required: that the return of the person concerned to the country granting protection is possible and reasonable for factual and legal reasons during the relevant period (Lower Saxony-Bremen Higher Social Court, decision of November 19, 2019 – L 8 AY 26/19 B ER; similarly, Bavarian Higher Social Court, decision of July 8, 2019 – L 18 AY 21/19 B ER; Saxony-Anhalt Higher Social Court, decision of June 11, 2019 – L 8 AY 5/19 B ER; LSG Baden-Württemberg, decision of 14 May 2019 – L 7 AY 1161/19 ER-B).
2. Given the COVID-19 pandemic, there are serious doubts regarding the possibility of returning to Malta in March 2020, at least for the second half of the month, based on the criteria of preliminary injunction proceedings. Regular air and ferry services to Malta were suspended during March 2020. Furthermore, travel would likely have been impossible due to the travel restrictions for non-EU citizens that came into effect on March 17, 2020, and the associated quarantine requirements.
Principle (Juris)
1. Section 1a paragraph 4 sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) is not applicable if the relevant granting of protection by another state dates back so far that the conditions of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) have subsequently been met.
2. On the relevant criteria for the interpretation of a benefit decision under the Asylum Seekers' Benefits Act (AsylbLG) as a permanent administrative act.
Source: socialcourtsability.de
5.2 – SG Bremen, decision of 03.07.2020 – S 39 AY 55/20 ER
Entitlement to standard benefit level 1 in communal accommodation
Guidance note (Attorney Jan Sürig, Bremen)
: “The Chamber shares the doubts expressed in case law and literature regarding the constitutionality of the new special needs level for adult benefit recipients who are housed in reception centers, communal accommodations or comparable accommodations, as regulated by the legislator in § 3a AsyIbLG.”
Legal tip:
Also very recent are the decisions of the Higher Social Court of Mecklenburg-Western Pomerania of June 10, 2020 – L 9 AY 22/19 B ER; the Social Court of Oldenburg of June 9, 2020 – S 25 AY 21/20 ER; the Social Court of Aurich of June 5, 2020 – S 23 AY 13/20 ER; and the Higher Social Court of Saxony of March 23, 2020, under file number L 8 AY 4/20 B ER.
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).
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Recipients of Hartz IV benefits must now expect sanctions again if they violate the requirements of the job centers.
The Federal Employment Agency, in consultation with the Federal Ministry of Labor, has issued a corresponding directive to the job centers.
More information: www.mdr.de
6.2 – Hartz IV: These rates are to apply from 2021
Hartz IV benefits are set to rise soon – the details of how are outlined in a draft law from the Federal Ministry of Labour, which is available to the Redaktionsnetzwerk Deutschland (RND).
The standard rate for children aged 14 to 17 is set to increase particularly sharply.
The most important fundamental change: Mobile phone costs will in future be taken into account when calculating the standard benefit rate.
Source: www.rnd.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
