Tacheles Legal News Ticker Week 29/2020

1. Decision of the Federal Constitutional Court on the German Social Code, Book II (SGB II)

1.1 – Federal Constitutional Court, decision of 12 February 2020 (1 BvR 1246/19):

Guiding principle Dr. Manfred Hammel:
The compatibility of the exclusion of foreigners from benefits according to § 23 para. 3 sentence 1 no. 2 SGB XII with the humane minimum standard of living (Art. 1 para. 1 GG) is highly controversial.

The constitutionality of the exclusion of benefits for EU citizens who are not employed in the federal territory but are also not required to leave the country, represents a difficult, unresolved legal question.

The rejection of the application for legal aid in corresponding expedited social court proceedings violates the applicant's rights under Article 3 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 3 and Article 19 Paragraph 4 of the Basic Law.

2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)

2.1 – Baden-Württemberg State Social Court, Judgment of 20 May 2020 – L 3 AS 227/20

Principle (Juris)
1. By directing wages to an account of a third party expressly designated for this purpose by the employee, the employer effects the performance owed under the employment contract with debt-discharging effect.

2. In this case, the employee's income for social security purposes is considered received on the day the funds are credited to the account of the third party who is obligated to make cash payments at any time under the escrow agreement. This applies even if the employee does not actually receive the cash until later.

3. The accrual principle stipulated in Section 11 Paragraph 2 of the German Social Code, Book II (SGB II) was not chosen in an unreasonable manner and therefore does not violate the general principle of equality.

Source: socialcourtsability.de

2.2 – Baden-Württemberg State Social Court, Decision of May 27, 2020 – L 3 AS 1168/20 ER-B

Principle (Juris)
1. Legal recourse to the social courts is available if the applicant objects neither to the manner in which the main customs office carries out enforcement proceedings, for which the fiscal courts are competent pursuant to Section 33 Paragraph 1 No. 2 of the Fiscal Court Code (FGO), nor to the manner of enforcement under the provisions of the Code of Civil Procedure (ZPO), for which the ordinary courts are competent pursuant to Section 66 Paragraph 4 of the German Social Code, Book X (SGB X), but rather – by raising objections to the administrative acts to be enforced themselves or to enforcement based thereon – seeks an injunction or a stay of enforcement (following Bavarian State Social Court, Decision of April 29, 2014, L 7 AS 260/14 B ER, juris Rn. 35, 36).

2. Due to the lack of regulatory effect, a notice of enforcement is not an administrative act within the meaning of Section 31 of the German Social Code, Book X (following the Federal Social Court's ruling of June 25, 2015, B 14 AS 38/14 R, juris para. 15).

3. An application for an interim injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG) aimed at preventing or suspending enforcement is admissible (following the Federal Social Court's decision of June 25, 2015, B 14 AS 38/14 R, juris Rn. 18-22, 25).

4. The legal basis for suspending or refraining from enforcement proceedings based on a decision issued by a job center cooperating with another agency in a joint facility is Section 40 Paragraph 8 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Sections 1 to 4 of the German Administrative Procedure Act (VwVG) and Section 5 of the German Administrative Procedure Act (VwVG) in conjunction with Sections 249 et seq. of the German Fiscal Code (AO), in particular Section 257 Paragraph 1 AO and Section 258 AO.

5. The reference in Section 50 Paragraph 4 Sentence 3 of the German Social Code, Book X (SGB X) to Section 52 of the SGB X implies that administrative acts issued to enforce the established reimbursement claim – simultaneously with the determination of the reimbursement claim pursuant to Section 50 Paragraph 3 Sentence 1 of the SGB X – trigger a limitation period of 30 years, calculated from the date the enforcement order becomes legally binding, pursuant to Section 52 Paragraph 2 of the SGB X (following the Senate's judgment of December 11, 2019, L 3 AS 3321/19, juris Rn. 25).

Source: socialcourtsability.de

2.3 – Lower Saxony-Bremen State Social Court, Judgment of 26 May 2020 – L 11 AS 239/18

Principle (Juris)
1. When examining whether an administrative act is sufficiently specific within the meaning of Section 33 of the German Social Code, Book X (SGB X), it is not only the original decision that is to be considered, but also the partial remedy or objection decision issued in this regard.

2. The one-year period according to § 48 para. 4 sentence 1 in conjunction with § 45 para. 4 sentence 2 SGB X applies only to the initial decision, not also to the partial remedy or objection decision that partially amends it.

Source: www.rechtsprachung.niedersachsen.de

2.4 – Lower Saxony-Bremen State Social Court, Judgment of 11 June 2020 – L 15 AS 281/18

Principle (Juris)
1. On the conditions for the forfeiture of an application to continue legal proceedings which have been concluded as settled due to the occurrence of the deemed withdrawal of the action pursuant to Section 102 Paragraph 2 Sentence 1 of the Social Court Act (SGG).

2. If, after notification by the court that proceedings are deemed concluded due to the assumption of a lack of legal interest by way of deemed withdrawal of the action, more than one year has passed before an application for continuation of the proceedings is filed, the application is generally deemed to be late, with the consequence that forfeiture has occurred.

Source: www.rechtsprachung.niedersachsen.de

2.5 – North Rhine-Westphalia State Social Court, Judgment of 02.07.2020 – L 7 AS 712/20

To determine income for self-employed individuals – no annual review for business consulting – lease payments of EUR 573.89

Guidance (Editor)
1. The plaintiff's business does not fall under the scope of Section 3 Paragraph 5 of the former Regulation on Unemployment Benefit II (Alg II-V aF). A prerequisite for the application of this provision is gainful employment whose nature necessitates an annual assessment. This includes seasonal businesses such as ice cream parlors, beach chair rentals, ski lifts, kiosks at summer or winter tourist destinations, or farmers who generate income from only one harvest. The plaintiff's business, "management consulting," does not fall under this category.

2. The request to include the vehicle costs of €5,295.36 in the calculation of operating expenses is unfounded. While the financing method itself, i.e., leasing a vehicle, does not preclude its consideration (Federal Social Court judgment of June 5, 2014 – B 4 AS 31/13 R), Section 3 Paragraph 3 Sentence 1 of the former version of the German Social Code, Book II (SGB II-V) already prohibits its inclusion. According to this provision, actual expenses are not deductible to the extent that they are wholly or partially avoidable or are clearly not commensurate with the recipient's living circumstances while receiving benefits under SGB II. Based on an individual assessment and review, with a monthly mileage of 500 km and a monthly lease payment of €573.89, the costs do not correspond to the recipient's living circumstances while receiving benefits.

Source: socialcourtsability.de

2.6 – North Rhine-Westphalia State Social Court, Judgment of 28 May 2020 – L 6 AS 833/17 – Appeal allowed

Guidance (Editor):
The question of whether a concept that relies heavily on the evaluation of housing advertisements and the percentage-based definition of a demand group when determining the net rent is sound (questionable in light of the Federal Social Court's ruling of February 19, 2009, B 4 AS 30/08 R, according to which the creation of a sound concept must consider not only the apartments actually offered on the market, but also rented apartments) is a legal question affecting the entire federal territory.

Source: socialcourtsability.de

2.7 – Hessian State Social Court, decision of 02.06.2020 – L 7 AS 427/19

Just as a person in need of assistance who is receiving benefits under the German Social Code, Book II (SGB II) for the first time is unable to avoid the actual expenses now arising, so that in this case Section 22 Paragraph 1 Sentence 3 of the SGB II applies.

Guidance (Editor)
1. The fact that the plaintiffs were placed in a municipal overnight accommodation facility following a forced eviction from their previously occupied apartment under an administrative placement order is not comparable to the circumstances that would exist in cases of unnecessary moves by benefit recipients or changes of residence without prior approval (§ 22 para. 1 sentence 2 or para. 4 sentence 1 SGB II).

2. While a benefit recipient who changes their accommodation of their own free will is not worthy of protection, a benefit recipient who is assigned to accommodation after a forced eviction is entitled to protection.

3. In light of all this, the Chamber is convinced that an analogy to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) is much more appropriate to the actual events which, in the present case, led to the actual expenses for accommodation.

Source: socialcourtsability.de

2.8 – Thuringian State Social Court, Judgment of January 8, 2020 – L 4 AS 1246/16 – Appeal pending before the Federal Social Court – B 14 AS 57/19 R

Unemployment Benefit II – Accommodation and Heating – Accommodation Costs – Abstract Adequacy – Appropriate Apartment Size – Consideration of Foster Children – Concrete Adequacy – Increased Space Requirements – Exercise of Visitation Rights with the Foster Child – Effectiveness of the Cost Reduction Request – Necessity of a Renewed Cost Reduction Request in the Event of a Significant Change in Circumstances – Notification of the Change in the Legal Proceedings

Regarding the consideration of an increased need for space due to the exercise of a right of access based on Section 1685 Paragraph 2 of the German Civil Code (BGB) when calculating the reasonable accommodation costs according to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) with a former foster child.

Guiding principle (Juris):
1. The only criterion for determining the abstractly appropriate size of an apartment is the number of members of the household. Foster children are not included in this. This applies all the more if their primary residence is in a residential care facility and they only stay in the foster parents' home for three days a week. (Paragraph 49)

2. If additional living space is needed due to exercising visitation rights with a child, this can be taken into account within the framework of the specific reasonableness of accommodation and heating expenses. This also applies to exercising visitation rights with a foster child pursuant to Section 1685 Paragraph 2 of the German Civil Code (BGB). (Paragraph 55)

3. A significant change in circumstances (here: the expansion of visitation rights) may necessitate a renewed request for cost reduction. However, if the social security agency only learns of this change during the legal proceedings, it cannot be faulted for failing to issue a revised request for cost reduction in a timely manner. (Paragraph 71)

Source: Juris

3. Decisions of the social courts on basic income support for job seekers (SGB II)

3.1 – SG Oldenburg, decision of 10 July 2020 – S 46 AS 142/20 ER

The job center will not cover the costs of a furnished small apartment at a rate of €37.50 per m²

The Social Court of Oldenburg has ruled that the job center cannot be obliged to make a cost commitment for the planned rental of a furnished small apartment at a price of 450 euros for a size of 12 m².

Summary:
According to the Social Court, a guarantee of rent coverage cannot generally be obtained by way of a preliminary injunction, as there is no legitimate interest in such a decision. The applicant cannot achieve the legal certainty sought with this guarantee, since the guarantee would lose its effect if the main proceedings were to rule otherwise. In a subsequent obiter dictum, the Social Court pointed out that the Job Center would likely not be able to effectively rely on the reasonable rent limit set by the City of Oldenburg for new rental agreements for very small apartments in any subsequent legal proceedings concerning the guarantee or the assumption of rent costs.

The appropriateness of housing costs is always determined by a reasonable apartment size (up to 50 square meters for a single-person household) and the reasonable rent per square meter in the respective city, expressed as a product. In the city of Oldenburg, this would place a rent of €450 for a single person within the reasonable limits. However, eligibility for a guarantee to cover the rent for the apartment in question, as defined in Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), could be ruled out if the rent offered is usurious. This cannot be clarified in the pending proceedings for preliminary legal protection. Such clarification is reserved for legal proceedings against the denial of the guarantee. It must be emphasized that it is beyond all bounds of decency to rent substandard apartments at exorbitant prices to the poorest of the poor at the expense of the public purse.

The question of whether usury exists must otherwise be clarified in a civil trial or an administrative offense proceeding (§ 5 Economic Criminal Law) or a criminal proceeding (§ 291 Criminal Code) against the landlord.

The decision is not yet legally binding.

Source: Press release from SG Oldenburg dated July 16, 2020

4. Decisions on asylum law and 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.

Full text now available: sozialgerichtsbarkeit.de

4.2 – Social Court Frankfurt/Oder, Judgment of 20 December 2019 – S 34 AY 15/16 – Appeal pending before the Federal Social Court – B 7 AY 1/20 R

Do recipients of so-called analogous benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) have a claim to blind person's assistance pursuant to Section 72 of the German Social Code, Book XII (SGB XII) in conjunction with Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII)?

Principle (Juris):
For those entitled to benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsybLG), a claim to blind person's assistance under Section 72 of the German Social Code, Book XII (SGB XII) is not excluded from the outset.

Source: Juris

4.3 – LSG Hessen, decision of June 4, 2020 (L 4 AY 5/20 B ER):

Guiding principle Dr. Manfred Hammel:
Seeking refuge in a Christian community within the framework of so-called open church asylum does not constitute an abuse of rights in accordance with Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).

During this special form of accommodation, deportation as a measure to terminate residence (§§ 34 ff. AsylG) is neither legally nor factually impossible for the regulatory authorities, provided that the immigration authority is continuously aware of the non-German person's whereabouts.

The state does not have actual access to church premises. If necessary, the authorities can enforce the deportation of a person seeking church asylum by using direct force.

The regulatory authority acts inconsistently if, on the one hand, it tolerates the continued stay in the federal territory within the framework of so-called open church asylum, and on the other hand, considers the stay of this foreigner in the federal territory to be an abuse of rights within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).

Legal tip: Contra:
Bavarian State Social Court, judgment of 28 May 2020 – L 19 AY 38/18 – appeal allowed

4.4 – Schleswig-Holstein Higher Social Court, decision of 15 July 2020 – L 9 AY 79/20 B ER

Killing three birds with one stone – LSG SH follows up, an article by attorney Sabine Vollrath

In its recent decision of July 15, 2020, the Schleswig-Holstein State Social Court dealt with three complex issues relating to asylum seeker benefits law with pleasing clarity.

Guidance (Attorney Sabine Vollrath)
1. Section 2 AsylbLG instead of Section 3 AsylbLG: No abuse of rights if departure is not voluntary.

Mere inaction (specifically: the failure to leave voluntarily) cannot be considered an abuse of rights, even for benefit recipients who have neither a substantive right of residence nor a formal legal position.

2. Standard benefit level 1 for single persons in communal accommodation, if the entitlement already existed before 21.8.2019

For those entitled to benefits who already had an entitlement to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) before August 21, 2019, the application of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in its current version is not possible.

3. Restriction of benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) only in cases of breach of duty

A restriction of benefits is only conceivable if there is evidence of a breach of duty.

Source: Attorney Sabine Vollrath

5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes

5.1 – The Federal Social Court (BA) comments on the decision of the Higher Social Court of North Rhine-Westphalia (LSG NRW) of 22 May 2020 – Case No.: L 7 AS 719/20; B ER: L 7 AS 720/20 B

Can an additional allowance be granted under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for the provision of digital devices (PC equipment) to students in connection with the Corona pandemic?

Contrary to the assumption of the LSG, internet-enabled computers (hardware and software) and accessories are already included in the standard allowance.

www.arbeitsagentur.de

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