1.1 – Federal Constitutional Court of 08.07.2020 – 1 BvR 1094/20
Entitlement to SGB II benefits for EU citizens:
Federal Constitutional Court strengthens the rights of unmarried couples with children.
Analogous and fictitious application of Section 28 of the Residence Act to EU citizens is not excluded.
More information: www.ggua.de
2. Decisions of the Federal Social Court on social assistance (SGB XII)
2.1 – BSG, Judgment of April 30, 2020 (B 8 SO 1/19 R):
Guiding principle by Dr. Manfred Hammel:
When determining the income threshold according to Section 85 Paragraph 1 Number 2 of the German Social Code, Book XII (SGB XII), for the provision of services in a residential care facility, heating costs must also be taken into account. This is mandated by the paramount importance of housing as an essential part of the physical subsistence minimum. Without adequate heating, a dwelling is uninhabitable.
Note: www.ra-fuesslein.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – LSG Baden-Württemberg, judgment of 18 March 2020 (L 3 AS 3212/18):
Guiding principle by Dr. Manfred Hammel:
On the affirmation of the claim for additional needs pursuant to Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), in the amount of EUR 97.50 per month due to the journeys regularly undertaken by an employable benefit recipient to receive methadone substitution treatment in a location more than 20 km away.
This constitutes an unavoidable, ongoing, and not merely one-off, special need within the meaning of Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II). According to medical assessment, the applicant requires daily methadone substitution. The travel expenses incurred by the applicant daily due to this substitution treatment far exceed the "normal" standard allowance (Section 20 SGB II) due to this frequency. Recipients of unemployment benefit II (Alg II) do not incur daily travel expenses for medical treatment. This special case is not taken into account when calculating the standard allowance.
This additional need arising from the treatment is also unavoidable within the meaning of Section 21 Paragraph 6 Sentence 2 of the German Social Code, Book II (SGB II), because this correspondingly high need cannot be covered by the savings opportunities available to the applicant, nor can it be financed through contributions from third parties or institutions.
Travel expenses for outpatient treatments are covered by statutory health insurance only in exceptional cases with special justification, as stipulated in Section 60 Paragraph 1 Sentence 3 of the German Social Code, Book V (SGB V), which is not the case here. General travel expenses incurred in connection with receiving outpatient medical treatment that is not considered medical treatment under Section 27 of the SGB V are not covered by statutory health insurance.
Using the savings amounts included in the standard allowance to finance these travel expenses would lead to a depletion of these savings amounts and thus to a constant underfunding of these needs.
In principle, a claim for reimbursement of necessary travel expenses based on Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) can only be asserted to the extent that it is necessary to pay for a monthly public transport ticket.
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Dortmund, decisions of 25 October 2019 (S 38 AS 4794/19 ER) and of 16 April 2020 (S 38 AS 762/20 ER):
Guiding principle Dr. Manfred Hammel:
An applicant is to be considered in need of assistance if a home visit carried out by the job center reveals that the only food found in her possession is crispbread and water bottles, and the applicant states that she earns only an income of ten to fifteen euros per month by collecting deposit bottles and begging, which cannot be refuted by further data and facts.
The existence of a cohabiting partnership according to § 7 para. 3 no. 3c) SGB II is precluded if the apartment rented by the father of her son is fully furnished, her personal belongings are also located there, and the accommodation gives an inhabited impression, and both persons agree that they have not had a partnership and are not personally connected beyond a friendship.
Needs for accommodation and heating (§ 22 SGB II) cannot be claimed if the authorities have doubts as to whether the tenancy agreement concluded between these two persons was also concluded with a genuine intention to be legally bound and it cannot be assumed that the termination of the applicant's tenancy due to payment default will be enforced by the landlord, i.e., she has to expect to become homeless.
4.2 – Social Court Dortmund, Judgment of 30 October 2019 – S 32 AS 3072/19 – pending before the Federal Social Court – Case No. B 4 AS 14/20 R
Is the immediate bonus paid out by the new energy supplier due to a change of provider considered income to be taken into account within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II)?
Guidance (Editor):
The "immediate bonus" paid out by the energy supplier after a change of electricity provider is considered income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
4.3 – Social Court Berlin, Judgment of 13.08.2020 – S 37 AS 4462/19
Principle (Juris)
1. The establishment of an EGVP address for communication between the SGB II agency and the courts does not constitute the opening of electronic legal transactions for filing objections. The express instructions regarding the objection procedure in written form or for recording in the information leaflets and on the job centers' websites preclude the assumption of a tacit dedication.
2. Neither Section 84 of the Social Courts Act (SGG) in the version applicable since 1 January 2018, nor Section 2 of the E-Government Act (EGovG) or Section 4 of the E-Government Act Berlin (EGovG Berlin) make the opening of electronic legal transactions for objections, supported by the will of the authority, unnecessary.
3. The legal remedy instruction, which deviates from the wording of Section 84 of the Social Court Act (SGG), is therefore not incorrect, with the consequence that the objection period of one month after notification applies.
Source: socialcourtsability.de
Note: Contrary to the above, see:
SG Berlin of 25 October 2018 – S 121 AS 10417/18 ER; LSG Schleswig-Holstein of 20 December 2018 – L 6 AS 202/18 B ER and most recently SG Berlin of 21 January 2020 – S 179 AS 4920/19 ER
5. Decisions of the social courts on employment promotion law (SGB III)
5.1 – Darmstadt Social Court, Judgment of 29 June 2020 – S 8 AL 187/18
Granting of vocational training assistance to Afghan nationals
Guidance (Editor):
The court considers the defendant's schematic reliance on the formal overall protection rate of a country of origin to be legally questionable in light of the prohibition of discrimination under Article 3 Paragraph 3 of the Basic Law; therefore, it affirms eligibility for vocational training assistance in this case!
Principle (Juris)
1. When applying Section 132 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), the overall material protection rate must be taken into account.
2. The concept of the expectation of a permanent and lawful residence is a predictive decision, for which, with regard to the relevant facts, the point in time of the last official decision – usually the notice of objection – is to be taken into account until 31 July 2019.
Source: socialcourtsability.de
6. Decisions of the State Social Courts on Social Assistance (SGB XII)
6.1 – Hessian State Social Court, Judgment of 01.07.2020 – L 4 SO 120/18 – Appeal allowed
Guidance (Editor)
On the question of the necessity and scope of the constitutionally compliant interpretation of Section 23 Paragraph 3 Sentences 5 and 6 of the German Social Code, Book XII.
Principle (Juris):
Section 23, paragraph 3, sentences 5 and 6 of the German Social Code, Book XII (SGB XII) must be interpreted in a manner consistent with the constitution to mean that the hardship provision must cover every need for benefits under Chapters Three and Five that arises during the actual stay in Germany. Even in cases of special needs that are not time-limited, and thus for the actual duration of the stay in Germany, subsistence-level social benefits must be granted. If, in addition, needs other than those typically provided for in paragraph 3, sentence 5 are asserted and actually exist, these must also be covered, in accordance with a constitutionally compliant interpretation of sentence 6, for the duration of the actual stay, but no longer than until the enforceable obligation to leave the country. The difference to benefits under Chapter Three therefore lies in the fact that the person in need is referred by the lump-sum benefit model of Chapter Three to register their individual needs, particularly in the area of socio-cultural existence, and cannot benefit from the lump sum if they fail to demonstrate their needs.
Source: socialcourtsability.de
Note:
Thomé Newsletter 26/2020 dated August 5, 2020
LSG Hessen on “bridging benefits” for EU citizens: The minimum subsistence level must be guaranteed for the entire duration of the stay.
The core of the ruling by the Higher Social Court of Hesse is that the entire subsistence minimum must be guaranteed at all times during an actual stay in Germany, and therefore the limitation to one month is inadmissible. The restriction to reduced benefits (eliminating all socio-cultural needs!) is also deemed unconstitutional.
Note:
The correct date of the decision is July 1, 2020.
7. Decisions on asylum law and asylum seekers' benefits
7.1 – Aachen Social Court, Judgment of 18 August 2020 – S 20 AY 18/19
Granting of full benefits – interpretation in accordance with the constitution – updating of monetary amounts
Regarding the lack of reassessment or update of basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) since 2017 – No adjustment of benefit rates
Guidance (Editor):
Benefits for asylum seekers are not to be adjusted annually (based on the decision of the Social Court of Hamburg of 08.07.2019 – S 28 AY 48/19 ER), contrary to the decision of the Higher Social Court of Lower Saxony-Bremen of 1.11.2018 – L 8 AY 37/18 B ER; the SG Stade (judgment of 13.11.2018 – S 19 AY 15/18), the SG Lüneburg (decision of 05.10.2019 – S 26 AY 12/19 ER), the SG Dresden (decision of 02.08.2019 – S 20 AY 55/19 ER), the SG Bremen (decision of 15.04.2019 – S 40 AY 23/19 ER), the SG Oldenburg (decision of 05.07.2019 – S 25 AY 15/19 ER) and others.
Source: socialcourtsability.de
8. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
8.1 – Hamburg Higher Administrative Court of 18.08.2020 – 4 Bf 160/1
A room in shared accommodation is to be considered an apartment
The Higher Administrative Court of Hamburg has ruled that entering rooms in a residential accommodation provided for private use for the purpose of deportation without a judicial order is unlawful.
Summary:
According to the Higher Administrative Court, the Free and Hanseatic City of Hamburg was not authorized to enter a family's residence in 2017 for the purpose of deportation without a court order. The requirements of Section 23 Paragraph 1 of the Hamburg Administrative Procedure Act (HmbVwVG), the only legal basis applicable at the time, were not met. According to this provision, residences and business premises may only be searched without the consent of the person subject to the deportation order and only on the basis of a court order (Section 23 Paragraph 3 HmbVwVG). The Higher Administrative Court ruled that the rooms in a residence provided for individual use constituted a residence within this meaning. Furthermore, the entry of public officials into a residence to locate and apprehend individuals for the purpose of deportation constitutes a search within the meaning of Section 23 Paragraph 1 HmbVwVG and Article 13 Paragraph 2 of the Basic Law (GG). Neither the plaintiffs' consent nor a court order was obtained for the search of the plaintiffs' residence.
Since the assessment of the factual and legal situation had to be based on the point in time of the disputed measure in 2017, the provisions of Section 58 Paragraphs 5 and 6 of the Residence Act, which were inserted into the Residence Act by the federal legislature in August 2019 and which specifically regulate the conditions for entering and searching the residence of a foreigner to be deported for the purpose of his apprehension, were irrelevant for the decision.
The Higher Administrative Court did not grant leave to appeal against this decision. An appeal against this refusal is possible, which will be decided by the Federal Administrative Court.
Source: www.juris.de
8.2 – Despite instructions to the contrary: Job centers continued to impose sanctions at the beginning of the pandemic measures.
Source: deutsch.rt.com
8.3 – Jobcenter: Reminder from the Recklinghausen debt collection service, a contribution by attorney Dr. Matthias Brauer LL.M.
Further information: www.anwalt.de
8.4 – Essen: Rent limits for Hartz IV recipients increase
Those receiving Hartz IV benefits and looking for an apartment in Essen will have more options starting next month. The maximum rent limits for recipients of social benefits will increase on September 1st, in some cases significantly.
Rent ceiling in Essen will be significantly increased
Starting next month (September 1st), recipients of Hartz IV benefits in Essen will be able to live in more expensive apartments. The maximum rent limits are being raised due to the new rent index. Because rents have increased overall, the amount that recipients of social benefits are allowed to spend on housing is also rising. Previously, the maximum rent for a single person was €360 (excluding utilities); now it's €50 more. For larger families, the increase is around €100. The other rent brackets are as follows:
one person: from September 410.00 euros (previously: 361.00 euros)
two persons: from September 516.75 euros (previously: 458.90 euros)
three people: from September 641.60 euros (previously: 564.80 euros)
four people: from September 773.30 euros (previously: 681.15 euros)
five people: from September 916.30 euros (previously: 811.80 euros)
six people: from September 1,006.80 euros (previously: 897.60 euros)
seven people: from September 1,090.70 euros (previously: 993.20 euros)
eight people: from September 1,156.40 euros (previously: 1,083.60 euros)
nine people: from September 1,192.50 euros (previously: 1,170.00 euros)
For each additional person, the reasonable accommodation cost increases by 79.50 euros.
Source: www.radioessen.de
8.5 – Cologne Job Center imposes 100% sanction on baby
More information: www.die-keas.org
8.6 – SOCIAL LAW JUSTICE
Legal knowledge for social welfare counselling aimed at securing livelihoods (Vol. 8/No. 7) August 2020
Current case law on Section 22 of the German Social Code, Book II (SGB II) "Needs for accommodation and heating" (Part I) by Bernd Eckhardt
More information: sozialrecht-justament.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker tacheles-sozialhilfe.de
