Tacheles Legal Case Law Ticker Week 31/2020

1. Decisions of the Federal Social Court on social assistance (SGB XII)

1.1 – Federal Social Court (BSG), Judgment of 27 February 2020 – B 8 SO 18/18 R

Necessary transport costs as part of an approved integration measure

Guidance (Editor)
1. Travel expenses for attending an inclusive kindergarten may be covered according to § 19 para. 3 in conjunction with § 53 para. 1 sentence 1, § 54 para. 1 sentence 1 SGB XII, because if travel expenses are necessarily incurred when carrying out an integration assistance measure, they must be covered by the social welfare provider as a necessary component thereof.

2. This is not contradicted by the fact that the reimbursement of travel expenses is not explicitly mentioned in the law if its reimbursement is essential to fulfilling the objectives of integration assistance by enabling a specific measure.

Source: socialcourtsability.de

2. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)

2.1 – Saxony State Social Court, Judgment of 16 July 2020 – L 7 AS 832/17

Regarding the additional needs in case of disability for periods during which an assessment of vocational suitability (aptitude assessment) is carried out in a rehabilitation facility, affirmed here.

Suitability assessment and work trials are services for participation in working life; therefore, recognition of an additional need is possible according to § 21 para. 4 sentence 1 SGB II

Guidance (Editor)
1. In any case, if, as here, an assessment of suitability pursuant to Section 33 Paragraph 4 Sentence 2 Half-Sentence 1 of the German Social Code, Book IX (SGB IX aF) (Section 49 Paragraph 4 Sentence 2 Half-Sentence 1 of the German Social Code, Book XI (SGB XI nF)) is carried out as a measure within the meaning of Section 21 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), an additional need pursuant to Section 21 Paragraph 4 Sentence 1 Alternative 1 of the German Social Code, Book II (SGB II) must be recognized (similarly, but not decisively, for a vocational orientation and work trial measure, e.g., Higher Social Court of Berlin-Brandenburg, judgment of December 1, 2009 – L 19 AS 1351/07).

Source: socialcourtsability.de

2.2 – North Rhine-Westphalia State Social Court, Judgment of 09.06.2020 – L 2 AS 401/19

Admissibility of an objection

A power of attorney issued for "basic income support benefits under the German Social Code, Book II" (SGB II) does not automatically provide proof that the representative is authorized to act on behalf of the recipient in the sense of a general or generic power of attorney for all administrative procedures related to the receipt of benefits.

Guidance (Editor):
The power of attorney is not subject to any formal requirements; however, pursuant to Section 13 Paragraph 1 Sentence 3 of the German Social Code, Book X (SGB X), the authorized representative must provide written proof of their power of attorney upon request. If this does not occur, any objection raised by them is inadmissible (Higher Social Court of North Rhine-Westphalia, Decision of October 16, 2013, L 2 AS 1342/13 B; similarly, Higher Social Court of Schleswig-Holstein, Judgment of November 4, 2008 – L 4 KA 3/07, and Decision of June 12, 2014, L 6 AS 522/13 B PKH; Higher Social Court of Rhineland-Palatinate, Judgment of April 30, 2013 – L 3 AS 98/13).

Source: socialcourtsability.de

2.3 – North Rhine-Westphalia State Social Court, decision of 16 July 2020 – L 21 AS 574/20 B – legally binding

Entitlement to legal aid

Guidance (Editor)
1. According to Section 37 Paragraph 2 Sentence 3 Clause 2 of the German Social Code, Book X (SGB X), the authority must prove receipt and the date of receipt in case of doubt. The three-day fiction of Section 37 Paragraph 2 Sentence 1 of the SGB X presupposes that the social security agency has recorded the date the document was mailed in the file (Federal Social Court [BSG] judgment of March 3, 2009 – B 4 AS 37/08 R).

2. The defendant did not document the date the decision was mailed in the file.

Source: socialcourtsability.de

2.4 – Berlin-Brandenburg State Social Court, decision of 02.07.2020 – L 14 AS 553/20 B ER – legally

binding; limitation period for a claim for reimbursement based on a legally binding reimbursement order pursuant to Section 328 Paragraph 3 of the German Social Code, Book III (SGB III); 30-year limitation period

Guidance (Editor)
1. The fact that the statute of limitations for reimbursement claims based on Section 328 Paragraph 3 of the German Social Code, Book III (SGB III) is not regulated by law is therefore contrary to the original intent. In this case, recourse to a corresponding application of Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) as the most appropriate statute of limitations provision is warranted.

2. However, a different rule applies if – as in the present case – a reimbursement order pursuant to Section 328 Paragraph 3 of the German Social Code, Book III (SGB III) was issued within the four-year limitation period following the end of the calendar year in which the final order became legally binding. In this case, there is no regulatory gap that would justify applying Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) by analogy.

Principle (Juris):
The four-year limitation period of Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) does not apply to a reimbursement claim established by a legally binding reimbursement order pursuant to Section 328 Paragraph 3 of the German Social Code, Book III (SGB III). This claim is subject to a 30-year limitation period pursuant to Section 52 of the German Social Code, Book X (SGB X).

Source: socialcourtsability.de

3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)

3.1 – Berlin-Brandenburg State Social Court, Judgment of 07.05.2020 – L 14 AL 111/18 – legally binding

Limits of the priority of mediation in the decision on an application for a start-up grant – A discretionary decision must not be artificially inflated

"With regard to the start-up grant, the unemployed person's lack of employability, which is neither stipulated as a legal requirement in the relevant regulations nor stipulated in the explanatory memorandum for granting the benefit, should not be qualified as a 'hidden' further requirement through the exercise of discretion. Considering employability in (reasonable) employment as a decisive and thus entitlement-extinguishing discretionary factor is flawed."

Guidance (Editor)
1. In principle, it is permissible, within the framework of the discretionary exercise of Section 93 SGB III, to take into account any existing priority of placement within the meaning of Section 4 Paragraph 2 SGB III (Berlin-Brandenburg State Social Court, judgment of October 6, 2015, file number L 14 AL 3/15).

2. However, the priority of mediation is only to be assessed as one of potentially several discretionary considerations within the framework of an overall assessment (Bavarian State Social Court, judgment of March 22, 2018, file number L 9 AL 135/14).

3. The defendant's explanations in the grounds for the contested decisions are, in the present case, too schematic, overemphasize the regulatory content of Section 4 Paragraph 2 of the German Social Code, Book III (SGB III), and fail to meet the obligation arising from the granting of discretion to ascertain and consider all relevant aspects. While the requirements for justifying a denial of benefits must not be excessive—if the individual case does not present any special circumstances that would hinder placement, the employment agency cannot be expected to actively search for such circumstances and address them within the framework of its discretionary decision—the discretionary decision must not be artificially inflated (see Bavarian State Social Court, judgment of March 22, 2018, file number L 9 AL 135/14).

4. The extent to which mediation attempts must be made and documented depends on the circumstances of the individual case, including the applicant's job application activities.

Source: socialcourtsability.de

4. Decisions of the social courts on social assistance (SGB XII)

4.1 – SG Berlin, Judgment of 28 October 2018 – S 70 SO 21/18 – pending before the Federal Social Court – B 8 SO 2/20 R

Guidance (Editor)
1. Regarding the legal question of whether the mere existence of an entitlement to housing benefit under the Housing Benefit Act (WoGG) leads to an exclusion from benefits under the Social Code, Book XII (SGB XII) due to the principle of subsidiarity in Section 2 Paragraph 1, the answer is no.

2. However, an exclusion from benefits based solely on Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII), based on the mere existence of an entitlement to housing benefit under the Housing Benefit Act (WoGG), without the beneficiary actually receiving "readily available funds" from this, is incompatible with the systematic structure of the law (see also, in effect: Berlin-Brandenburg Higher Social Court, decision of February 7, 2017 – L 15 SO 252/16 B PKH (unpublished); Berlin-Brandenburg Higher Social Court, decision of April 20, 2018 – L 15 SO 213/17 B PKH; according to which there should even be a "right of choice" between claiming housing benefit or claiming basic income support for the elderly and those with reduced earning capacity; presumably also: Berlin-Brandenburg Higher Social Court, judgment of October 25, 2018 – L 23 SO 208/17).

Source: socialcourtsability.de

Note: Attorney Kay Füßlein:
No priority for benefits under the Housing Benefit Act over benefits under the Social Code XII.

As has often been the case, recipients of benefits under the German Social Code Book XII (SGB XII) are asked to apply for housing benefit (more information here: Housing benefit and SGB XII – I and Housing benefit and SGB XII – II).

Now, a decision by the Social Court of Berlin dated October 28, 2019, is available, which ruled in a case in the main proceedings that there is no priority of benefits under the Housing Benefit Act over basic income support.

More information: www.ra-fuesslein.de

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

5.1 – Note on: Federal Social Court, 4th Senate, Judgment of 19 March 2020 – B 4 AS 1/20 R

Author: Dr. Stefan Meißner

Costs for part-time training are not deductible as business expenses

Guiding principle for the comment:
Costs for an activity not yet carried out are neither operating expenses nor necessary expenses associated with generating income.

Source: juris

5.2 – Reassessment of Hartz IV: At the expense of the poorest, the Paritätische Gesamtverband (Parity Welfare Association)

The Hartz IV benefit rate is to be recalculated next year – but the amount will remain far too low. Experts criticize this, and those affected are feeling the effects. Dr. Joachim Rock, head of the Department of Labor, Social Affairs, and Europe at the Paritätische Gesamtverband (Parity Welfare Association), explains why such unrealistic figures could be arrived at once again.

More information: www.der-paritaetische.de

Note:
See also: Statement by the office of the German Association for Public and Private Welfare on the draft bill for a law on determining standard needs and amending Book Twelve of the Social Code and the Asylum Seekers' Benefits Act

Statement by the office (DV 29/20) dated July 21, 2020

Or: 1.67 euros for a refrigerator

The German government has conducted a new assessment of the basic living expenses of Hartz IV recipients. The figures are controversial.

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