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 – BSG, judgment of June 24, 2020 – B 4 AS 10/20 R
A "provisional" Hartz IV notice must also be marked as such
In cases where a recipient of supplementary Hartz IV benefits has fluctuating income, the job center must explicitly label a Hartz IV decision intended to be provisional as such. Without such a provisional designation, the decision is considered final, meaning the job center cannot reclaim overpaid benefits, the Federal Social Court (BSG) ruled in a written judgment published on Tuesday. (Case No.: B 4 AS 10/20 R) The judges in Kassel ruled that this only changes if the person in need could have recognized that they had received benefits unjustly.
More information: www.evangelisch.de
1.2 – BSG, judgment of June 24, 2020 – B 4 AS 7/20 R
Unemployment benefit II – Accommodation and heating – Operating and heating cost credits – Reduction of benefits for accommodation and heating – Advance payments during periods outside of benefit receipt
The appeal proceedings concern the question of whether reimbursements of operating costs from periods in which the plaintiff did not receive benefits to secure his livelihood under the German Social Code, Book II (SGB II), should be credited against his needs.
Guidance (Editor)
1. Reimbursements of operating costs from periods in which the plaintiff did not receive benefits to secure his livelihood under the German Social Code, Book II (SGB II), fall under Section 22 Paragraph 3 of the SGB II and are to be counted as income and reduce the housing costs.
2. The consideration of the heating and operating cost refunds received by the plaintiff as reducing his need is not precluded by Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), because both the fact that these refunds partly related to a period outside the period of benefit receipt and to a previous apartment, and the fact that the refunds partly related to accommodation and heating costs that the defendant only partially covered due to existing income, were harmless for the application of the aforementioned provisions.
Source: www.bsg.bund.de
1.3 – BSG, Judgment of 30.04.2020 – B 8 SO 1/19 R
When calculating the income threshold for assistance under Books Five to Nine of the German Social Code, Book XII (SGB XII), heating costs remain eligible for consideration from January 1, 2016, due to the amendment of Section 85 Paragraph 1 Number 2 of the SGB XII. (Editor's note).
Wording isn't everything…
An article by attorney Kay Füßlein, Berlin
In the past, it was disputed whether heating costs should be taken into account when determining income under Section 85 of the German Social Code, Book XII (SGB XII). The Federal Social Court affirmed this in its judgment of April 25, 2013 – B 8 SO 8/12 R –.
This did not suit the legislator at all (for whatever reason…) and he changed the wording of the law and explained in the explanatory memorandum that heating costs should no longer be taken into account.
However, this change was deficient.
In a judgment dated April 30, 2020 (issued in written proceedings), the Federal Social Court (BSG) has now ruled that heating costs must continue to be taken into account.
It states:
The purpose of Section 85 of the German Social Code, Book XII (SGB XII) is, by setting an income threshold below which a co-payment by the beneficiary is generally not required when claiming benefits under Chapters Five to Nine of the SGB XII (see Section 88 SGB XII for exceptions), to ensure a standard of living above the level of need for subsistence assistance (Section 19 Paragraph 1 SGB XII); this also includes reasonable heating costs, which must be available both normatively and in practice for general living expenses.
Since further findings are still required, the Federal Social Court (BSG) has referred the case back to the Higher Social Court (LSG).
Source: Attorney Kay Füßlein
Full text of the judgment available from attorney Kay Füßlein
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Hamburg, Judgment of 30 September 2019 – L 4 AS 95/17
Basic income support for job seekers – claim for compensation due to socially unacceptable behavior – voluntary termination of employment during the probationary period
Guidance (Editor)
1. Claim for compensation due to socially unacceptable behavior due to voluntary termination of employment during the probationary period.
2. The termination of the employment relationship by the employee, if this knowingly brings about the loss of an income sufficient to cover needs and the creation of unemployment – as in the case of the plaintiff here – is the prime example of a socially unacceptable act (similarly Schwitzky, in: LPK-SGB II, 6th ed. 2017, § 34 para. 15; North Rhine-Westphalia State Social Court, judgment of 22.4.2013 – L 19 AS 1303/12).
Source: www.rechtrecht-hamburg.de
2.2 – North Rhine-Westphalia State Social Court, Judgment of 23 June 2020 – L 2 AS 1936/19
Section 9 Paragraph 4, Section 24 Paragraph 5 of the German Social Code, Book II (SGB II) requires that the person concerned actually undertakes efforts to utilize the assets.
Guidance (Editor)
1. If efforts to realize assets are not undertaken as a prerequisite for the fiction of need for assistance under Section 9 Paragraph 4 of the German Social Code, Book II (SGB II), and such efforts are not intended to be undertaken in the future, there is generally no basis for the "provision of benefits deviating from the standard case" under Section 24 Paragraph 5 of the SGB II, and loan-based benefits to bridge the waiting period until realization are generally not an option (Federal Social Court, Judgment of May 24, 2017, Case No. B 14 AS 16/16 R, juris para. 35 with further references). The rejection of loan-based benefits regularly requires that the job center has previously informed the person concerned of the necessity of efforts to realize assets and the consequences of failing to do so.
2. If the job center has pointed out the requirement to realize assets, provided concrete examples of realization possibilities, allowed time for immediate realization that is not possible, and provided loan-based benefits during this time, and has indicated that further loan-based benefits are not possible without proof of realization efforts and their failure, these can be refused in any case if realization efforts have been omitted and are not intended in the future.
Source: socialcourtsability.de
2.3 – North Rhine-Westphalia State Social Court, Judgment of 25 June 2020 – L 19 AS 1426/19
No basic income support benefits under the German Social Code, Book II (SGB II) for the duration of inpatient drug withdrawal therapy.
Guidance (Editor)
1. Facilities for the execution of judicially ordered deprivations of liberty include, among others, prisons, remand prisons, juvenile detention centers, psychiatric hospitals, and addiction treatment centers. In the Senate's view, other facilities, even if they also meet the requirements for an institution within the meaning of Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), are to be considered equivalent to such facilities if the time spent in them is credited towards the prison sentence, for example, drug assistance facilities pursuant to Sections 35 and 36 of the German Narcotics Act (BtMG) (cf., contra, Higher Social Court of Saxony, decision of November 28, 2012 – L 7 AS 244/12 B ER; Higher Social Court of Rhineland-Palatinate, decision of June 19, 2007 – L 3 ER 144/07 AS; Higher Social Court of Baden-Württemberg, decision of March 21, 2006 – L 7 AS 1128/06 ER-B; affirming the identical term "residence for the execution of judicially ordered deprivation of liberty" used in Section 98 Paragraph 4 of the German Social Code, Book XII (SGB XII): Deckers in: Grube/Wahrendorf, SGB XII, 6th ed. 2018 edition, § 98 para. 33; Schlette in: Hauck/Noftz, SGB, 08/19, § 98 SGB XII, para. 90; Schoch, in: LPK-SGB XII, 10th edition 2015, § 98 para. 56; Rabe: in Fichtner/Wenzel, SGB XII, 4th edition 2009, § 98 para. 30; regarding the predecessor provision of § 98 BSHG: VG Kassel, decision of 18 January 1990 – VII/3 G 903/88).
2. According to the explanatory memorandum to the law, the execution of judicially ordered deprivation of liberty occurs particularly in the case of imprisonment, pre-trial detention, and measures of rehabilitation and security (Bundestag printed matter 16/1410, p. 20). The implementation of therapy in an institution recognized under Sections 35 and 36 of the German Narcotics Act (BtMG) instead of serving a prison sentence in a correctional facility in accordance with the provisions of the German Prison Act (StVollZG) is to be considered the execution of judicially ordered deprivation of liberty.
Source: socialcourtsability.de
Note:
No SGB II benefits are available for drug therapy during imprisonment.
The LSG Essen has ruled that anyone who interrupts the serving of a prison sentence to undergo inpatient detoxification and adaptation treatment remains in a facility for the execution of a judicially ordered deprivation of liberty and is excluded from SGB II benefits.
2.4 – Lower Saxony-Bremen State Social Court, Judgment of July 8, 2020 – L 13 AS 18/20 – Appeal allowed;
Jobcenter's claim for compensation under Section 34a of the German Social Code, Book II (SGB II) – substantial contributory negligence – faulty case processing by the Jobcenter
Principle (Juris):
The Jobcenter's claim for reimbursement under Section 34a of the German Social Code, Book II (SGB II) requires substantial contributory negligence on the part of the liable party. This presupposes, among other things, that the liable party's conduct, according to the ordinary course of events, was likely to bring about the provision of benefits.
Source: www.rechtsprachung.niedersachsen.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Dortmund, judgment of 24 January 2020 – S 30 AS 4005/19;
Social Court Berlin, judgment of 10 August 2020 – S 216 AS 9650/18
Guidance (Attorney Johannes Christian Heemann, 01099 Dresden):
According to Section 95 of the Social Court Act (SGG), the subject of the action – provided that preliminary proceedings have taken place – is the original administrative act in the form of the decision on the objection. The decision on the objection can – analogously to Section 79 Paragraph 2 of the Administrative Court Procedure Act (VwGO) – exceptionally be the sole subject of an action if it gives rise to an independent grievance. This is the case if the authority wrongly rejects an objection as inadmissible and thus does not decide on the merits; in this case, an action can be brought for the separate annulment of the decision on the objection.
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – Baden-Württemberg State Social Court, Judgment of 22 April 2020 – L 8 AL 3052/19
Guidance (Editor):
If incapacity for work occurs during an approved stay abroad, the entitlement to continued payment of benefits in case of illness does not end with the expiry of the originally approved absence from the location, but rather there is an entitlement to continued payment of benefits for the full duration of 6 weeks of incapacity for work.
Principle (Juris):
An entitlement to continued payment of benefits in case of illness for a period of up to six weeks also arises if the unemployed person falls ill at a time when, with the approval of the employment agency, they are outside the local area. In this case, the continued payment of benefits is also not limited to the period of the originally approved absence.
Source: socialcourtsability.de
4.2 – Baden-Württemberg State Social Court, judgment of 26 June 2020 – L 8 AL 3185/19
Principle (Juris)
1. Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) provides a special rule for the limitation period of the reimbursement claim established by administrative act within the meaning of Section 50 Paragraph 3 of the German Social Code, Book X (SGB X), which takes precedence over the limitation period rule in Section 52 Paragraph 2 of the German Social Code, Book X (SGB X).
2. If, at the same time as the determination of the reimbursement claim or later, additional administrative acts are issued to enforce the reimbursement claim, the 30-year limitation period in Section 52 Paragraph 2 of the German Social Code, Book X (SGB X) applies due to the reference in Section 50 Paragraph 4 Sentence 3 of the SGB X.
3. Neither a deadline for payment nor a reminder has the character of an administrative act and therefore does not constitute a measure within the meaning of Section 52 Paragraph 1 of the German Social Code, Book X (SGB X) for the enforcement of established reimbursement claims.
Source: socialcourtsability.de
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – Baden-Württemberg State Social Court, Judgment of 09.07.2020 – L 7 SO 3313/18 – Appeal allowed
The present cause for the loss of the household furnishings – a compulsion due to illness without any external, objective necessity – is equivalent to the categories of cases recognized by the legislature and social court jurisprudence. This includes the initial furnishing of the apartment even after the disposal of household goods, due to items she gave away or threw away during psychotic episodes.
Guidance (Editor)
1. Initial furnishing of an apartment is to be granted even without an external change in the living situation if the existing furnishings are unexpectedly destroyed due to a temporally limited exceptional circumstance or a special event, the reason for the destruction lies outside of normal wear and tear, and saving to cover the special need was therefore not possible.
2. A claim for the granting of monetary benefits for the replacement of furnishings as "initial furnishings for an apartment" requires that the specific need has arisen due to 1. exceptional circumstances or a special event, 2. a "special need" exists, and 3. there is a causal link between the exceptional circumstances or the special event and the need (Federal Social Court, Judgment of August 6, 2014 – B 4 AS 57/13 R).
Source: socialcourtsability.de
5.2 – SG Oldenburg, decision of 23.04.2020 – S 21 SO 8/20 ER
Social assistance remains dependent on assets despite Corona legislation.
The Social Court of Oldenburg has ruled that substantial assets preclude the granting of social assistance, even under the special legal regulations in place due to the Corona epidemic.
Summary:
In the Social Court's opinion, the applicant's existing assets must be taken into account. While it is true that Section 141 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII) stipulates that, due to the coronavirus pandemic, assets may exceptionally not be considered when assessing need, contrary to the otherwise applicable regulations, this does not apply if the assets are substantial (Section 141 Paragraph 2 Sentence 2 SGB XII). Assets are considered substantial within the meaning of this legal provision if they significantly exceed the otherwise applicable asset allowances under the SGB XII. In the applicant's case—including his partner, who lives in a care facility—this allowance would be a maximum of €10,000, meaning that the value of the motorhome, determined through online research, at €125,000, far exceeds the allowance. The applicant failed to provide sufficient credible evidence that he could not use the motorhome because he had used it as security for a loan from an acquaintance.
The appeal against the decision was rejected by the LSG Celle-Bremen.
Source: Press release from SG Oldenburg dated August 14, 2020
6. Decisions on asylum law and asylum seeker benefits
6.1 – SG Stuttgart, decision of 26.11.2019 – S 20 AY 4288/19 ER
Time limits on benefit reductions under the Asylum Seekers' Benefits Act
The Stuttgart Social Court has ruled that benefit reductions pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act must be limited to six months and may not be linked to the duration of international protection in a third country.
Summary:
In the opinion of the Social Court, the applicant has credibly demonstrated not only the grounds for the order but also a legitimate claim to it. This is because, following the expiration of the first sanction for a period of seven months (from February 1, 2019, to August 31, 2019), further sanctions are no longer possible in this case. For reasons of proportionality, restrictions on benefits must be limited in time. This has been codified by the legislature since October 24, 2015, in the new provision of Section 14 of the Asylum Seekers' Benefits Act (AsylbLG), which applies to all sanctionable grounds for restrictions on benefits regulated in the AsylbLG.
The Social Court was not persuaded by the respondent's argument that the possibility of imposing a sanction under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) continued as long as the applicant enjoyed international protection in a European third country. While Section 1a Paragraph 4 Sentence 2 of the AsylbLG does indeed stipulate that a restriction of benefits is only possible "if the international protection or the right of residence granted for other reasons continues," the wording of the provision itself indicates that the legislator did not intend to link the duration of the sanction to the duration of the international protection. If such a link had been intended, the legislator could have clarified this by replacing the word "if" with the word "as long as." Furthermore, a constitutionally compliant interpretation reveals that the purpose of the sanction provision is to sanction subjectively reprehensible conduct on the part of the benefit recipient by means of a temporary restriction of benefits. Since the beneficiary has no direct influence on the duration of the international protection granted to him in a third country, as its duration depends on the residence regulations in that third country and on international provisions, the administrative decision made there cannot be attributed to him in the sense of subjectively culpable conduct. Therefore, teleological considerations also argue against directly linking the duration of the sanction to the duration of international protection in the respective third country. A different approach would mean that the duration of the sanction would depend on the time elapsed between the granting of international protection and the beneficiary's decision to leave the third country. Secondary migration immediately following the granting of international protection would result in a longer sanction period (potentially by years) than migration occurring shortly before the expiration of international protection. This legal consequence lacks any objective basis and, under a constitutionally compliant interpretation, is incompatible with the purpose of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG). Since the breach of duty no longer has any effect due to the applicant's now existing residence permit pursuant to Section 55 Paragraph 1 of the Asylum Act, which, according to Section 67 Paragraph 1 No. 6 of the Asylum Act, only ends with the finality of the Federal Office's decision, an extension of the sanction provision pursuant to Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act is also excluded.
The decision is not subject to appeal.
Source: Press release from SG Stuttgart dated August 3, 2020
6.2 – SG Stuttgart, decision of 23.02.2020 – S 11 AY 458/20 ER
Asylum seeker benefits: Benefit restrictions require individual misconduct on the part of the benefit recipient
The Stuttgart Social Court has ruled that the restriction of benefits pursuant to Section 1a Paragraph 4 Sentence 1, 2 of the Asylum Seekers' Benefits Act requires individual misconduct on the part of the benefit recipient.
Summary:
In the opinion of the Social Court, the applicants cannot be faulted for entering the Federal Republic of Germany, as they would face an immediate risk of degrading or inhuman treatment in Greece, taking into account the provisions of Article 3 of the European Convention on Human Rights. The Social Court based its decision on numerous rulings by the administrative courts concerning vulnerable groups, according to which a child's minority can preclude transfer to Greece. Therefore, the applicants cannot be faulted for entering the Federal Republic of Germany.
Source: Press release from SG Stuttgart dated August 3, 2020
7. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Note on: LSG Stuttgart 3rd Senate, decision of 06.02.2020 – L 3 AS 4073/19 ER-B
Author: Dr. Thomas Harks, Chairman RiLSG
Temporary injunction and subsequent loss of eligibility requirements
Guiding Principles
1. If a basic income support provider revokes its approval decision with effect ex nunc by means of a notice, there is no need for legal protection for an application for preliminary legal protection in the form of an order suspending the effect of an objection or action for annulment against the revocation notice if a legally binding preliminary injunction in the form of a regulatory order already exists for the revocation period.
2. The subject matter of preliminary injunction proceedings is limited in time to the subject matter of a corresponding main action that underlies or could underlie the preliminary injunction proceedings (following: Stuttgart Higher Social Court, decision of September 10, 2012 – L 13 AS 2976/12 ER-B). Therefore, in the case of basic income support benefits, not only must a new lawsuit be filed for each new benefit period, but also a new preliminary injunction proceeding (following: Munich Higher Social Court, decision of July 16, 2012 – L 11 AS 323/12 B ER).
Source: Juris (www.juris.de)
7.2 – The Brandenburg Refugee Council has published a guide to the Asylum Seekers' Benefits Act (AsylbLG), which is not only very attractive but also exceptionally knowledgeable, detailed, and helpful, written by lawyer Anja Lederer.
Link: www.fluechtlingsrat-brandenburg.de
7.3 – Unemployment: Emergency requests overwhelm aid organization Tacheles
Emergency counseling requests at the Wuppertal unemployment support organization Tacheles have increased dramatically, by more than 60 percent. The organization is already facing financial difficulties due to the strain, Tacheles announced Wednesday evening (August 12, 2020).
The overwhelming surge in inquiries is due, on the one hand, to the impact of the coronavirus crisis on people in the region, and on the other hand, to the limited services offered by other counseling providers. Currently, 300 new people are seeking advice each month, said board member Harald Thomé, explaining: "This high volume of inquiries is partly a result of the fact that almost the entire counseling infrastructure in Wuppertal is inaccessible to clients."
Thomé appeals: "To put it bluntly: Tacheles cannot handle this volume of counseling requests alone. People's needs are constantly increasing." The organization is urgently requesting donations and is also seeking additional volunteers
Continue reading: us10.campaign-archive.com
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
