1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – Federal Social Court, judgment of April 30, 2020 (B 8 SO 12/18 R):
Guiding principle Dr. Manfred Hammel:
For the application of the hardship provision arising from Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII), the origin of the assets is generally irrelevant.
An exception is justifiable here if the assets were accumulated from privileged income. In this case, these assets serve the same purpose as the continuously granted payment. The disability pension under Section 1 of the German Compensation Act (OEG) in conjunction with Section 31 of the German Federal War Victims' Relief Act (BVG), which has become an asset, does not lose its original function through this accumulation. Even as an asset, this pension can (still) fulfill the same purposes as the monthly basic pension. This monetary benefit is essentially driven by the motive of compensating for a special sacrifice made by the individual in terms of their health.
The basic pension granted pursuant to Section 1 of the Compensation Act (OEG) in conjunction with Section 31 of the Federal War Victims' Relief Act (BVG) is intended to compensate the eligible persons for the additional expenses that such a person with such a health impairment would not have without the injury suffered, but is not intended to be used either to cover the necessary cost of living or to establish savings.
The preferential treatment under Section 25f Paragraph 1 Sentence 5 of the Federal War Victims' Relief Act (BVG), according to which the assets formed from a subsequent payment remain disregarded for recipients of a corresponding basic pension after one year from the inflow of capital, must also be appropriately taken into account in the area of social assistance benefits within the framework of the application of the hardship provision of Section 90 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII).
Section 25f paragraph 1 sentence 5 of the Federal War Victims' Relief Act (BVG) is intended to provide recipients of a basic pension with the opportunity to achieve a higher standard of living than is possible with social assistance. This applies particularly to children and young people who are making special savings for a later, more comfortable standard of living or to finance future additional expenses due to their disability.
Note:
Federal Social Court (BSG): Assets from victim's pension may be specially protected.
Full text: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, Judgment of 19 April 2018 – L 7 AS 773/15
Unemployment benefit II – Accommodation and heating – Two-person household in Günzburg, Bavaria – Adequacy assessment – Lack of a coherent concept from the basic income support provider – Insufficient representativeness and timeliness of the data collection – Formation of a comparison area
Lack of a coherent concept due to inadequate data
Principle (Juris):
If the data basis chosen by the basic income support provider is not based on a coherent concept that offers sufficient assurance of reflecting the current conditions of the local rental housing market, and if revising the concept is not possible, recourse to the table values in Section 12 of the Housing Benefit Act is permissible. (Paragraphs 32-41) (Editorial principle)
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 30 July 2020 – L 37 SF 133/20 EK AS WA
Principle (Juris)
1. The presumption, codified in Section 198 Paragraph 2 of the Courts Constitution Act (GVG), that a disadvantage, which is not pecuniary in nature, has occurred if proceedings have been unreasonably long, is to be considered refuted if, taking into account all the circumstances, in particular the subject matter of the original proceedings in dispute and the conduct of the parties in those proceedings, it is not apparent that the subsequent claimant for compensation could have been exposed to any form of psychological distress.
2. A complaint of delay is generally considered to have been filed late and is therefore irrelevant if it is received by the court only at a time when the court has already sent out summonses to an oral hearing or corresponding notices of hearing.
3. In individual cases, raising a complaint of delay may prove to be an abuse of rights and therefore meaningless.
4. Individual abuse of rights is assumed if the entitled party is not pursuing a legitimate personal interest or if overriding legitimate interests of the opposing party are opposed, and the exercise of the right in the individual case would lead to a grossly unfair result incompatible with justice. The aspect of abuse of rights is guided by the scope of protection of the norm. An objection of abuse is primarily relevant if the legislator overlooked legal possibilities that only become apparent upon subsequent application of the law, and which, according to their other objectives, they would certainly have prevented (following BSG, Judgment of June 25, 2009 – B 10 EG 3/08 R –, juris, para. 25 et seq. with further references).
5. When introducing Sections 198 et seq. of the Courts Constitution Act (GVG), the legislature expressed its intention that neither the patience of a party to the proceedings should be "punished" nor should a "endure and liquidate" approach be encouraged. However, the latter is precisely the case when complaints of delay can be raised at any arbitrary lateness. In social court proceedings, the suspicion that the acquisition of a claim for compensation is the primary objective arises particularly when the subject matter of the dispute (e.g., actions against revocation and reimbursement orders, given the associated suspensive effect) and/or further legal or factual developments during the course of the proceedings suggest that the subsequent claimant for compensation had no genuine interest in the proceedings or even benefited to some extent from their duration, and that their own conduct of the proceedings showed no effort whatsoever to expedite the conclusion of the case.
6. If a plaintiff, represented by counsel, fails to inquire about the status of a case for almost three years in which, from the perspective of an objective recipient, he has no (longer any) genuine interest, and also fails to inform the court of any significant developments in the case, then it must be assumed that a complaint of undue delay, raised only after the court has sent the summons, does not serve any legitimate interest and provides no grounds for compensating for an alleged violation of fundamental rights. This applies all the more if the complaint of undue delay is raised only after the summons has been served.
Source: socialcourtsability.de
2.3 – Hamburg State Social Court, Judgment of 09.07.2020 – L 4 AS 328/19
Basic income support for job seekers – special needs – initial apartment furnishings – extra-long bed
Regarding the consideration of additional needs due to his height, he claims expenses for shoes (rejected here) and an oversized bed with accessories, which is approved here
Principle (Editor):
A person seeking assistance who is 1.97 m tall is entitled to additional needs for the purchase of an extra-long bed according to § 24 para. 3 sentence 1 no. 1 SGB II (cf. BSG, judgment of 23.5.2013 – B 4 AS 79/12 R).
Guidance (Editor)
1. The plaintiff is therefore entitled to initial equipment costs pursuant to Section 24 Paragraph 3 Sentence 1 No. 1 SGB II.
2. The purchase of an extra-long bed is not merely a replacement need that could not be considered initial equipment, but rather resembles the transition from a child's bed to a youth or adult bed, which, according to the case law of the Federal Social Court, triggers an initial equipment need (BSG, Judgment of 23.5.2013 – B 4 AS 79/12 R).
3. The initial furnishing requirements include a bed, slatted frame, mattress, and duvet. A standard-sized bed of 2.00 m in length does not meet the needs of a person who is 1.97 m tall for a comfortable sleeping place; rather, it is too short to allow for relaxed and supported lying. It is unnecessary to specify a height at which extra length becomes necessary – at a height of 1.97 m, this is readily apparent.
Source: socialcourtsability.de
2.4 – Baden-Württemberg State Social Court, Decision of August 7, 2020 – L 7 AS 1376/20 ER-B
Principle (Juris):
When examining whether Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) precludes an entitlement to benefits under the SGB II, the benefit provider must independently examine the involuntary nature of unemployment within the framework of a continuing right of residence pursuant to Section 2 Paragraph 3 Sentence 2 of the Freedom of Movement Act/EU (FreizügG/EU). In this respect, it is not bound by the decision of the Federal Employment Agency, which merely has to confirm the prerequisites for the existence of unemployment specified in Section 138 Paragraph 1 of the German Social Code, Book III (SGB III) (lack of employment, job search efforts, availability for work).
Source: socialcourtsability.de
Legal tip:
see also LSG North Rhine-Westphalia, decision of 2 February 2018 – L 7 AS 2309/17 B
2.5 – Mecklenburg-Vorpommern State Social Court, Decision of June 5, 2020 – L 8 AS 8/20 NZB
Regarding the question of whether a legal guardian, within the scope of duties relating to asset management and official and housing matters, can effectively represent the person concerned at a reporting appointment pursuant to Section 309 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), with the consequence that the prerequisites for a sanction for failure to report are not met, there is in any case no need for clarification.
Principle (Editor):
The appearance of the guardian is not sufficient to satisfy the plaintiff's general reporting obligation pursuant to Section 59 SGB II in conjunction with Section 309 SGB III.
Guidance (Editor):
The wording of the law itself makes it immediately and unambiguously clear that the notification must be made in person. This is generally understood to mean that while the unemployed person may be accompanied, sending only an authorized representative is not permitted; that is, the purpose of the notification is only achieved through the unemployed person's personal appearance.
Source: www.landesrecht-mv.de
2.6 – North Rhine-Westphalia State Social Court, Judgment of October 16, 2012 – L 12 AS 2309/11 – legally binding.
Principle (Editor):
The referral practice of the Federal Employment Agency does not violate social confidentiality. A referral with the reference "Federal Employment Agency" and the BG number is, in this combination, a permissible data transfer.
Guidance (Editor)
: The Bavarian State Social Court, in its decision of July 1, 2011 – L 7 AS 461/11 B ER – (Juris printout, paragraphs 15 ff.), ruled that a transfer with the payment reference "Federal Employment Agency" and the BG number is a permissible data transmission (§§ 53 para. 2 SGB I, 67 ff. and 67b para. 1 sentence 1 SGB X). The authorization for transmission arises from §§ 68 to 77 SGB X. The assigned customer number serves as an identification feature to identify and verify payments in mass administration. However, the numbers do not contain any recognizable information about the individual benefit recipient. The objective of preventing the bank from receiving information about the sender's identity cannot be guaranteed for technical reasons related to the transfer process. The receiving bank is always able to assign a transfer to the respondent. This is also necessary to disclose one's identity when making money transfers. Only in this way can a transfer be correctly assigned. The chamber concurs with these findings of the Bavarian State Social Court.
Source: socialcourtsability.de
2.7 – North Rhine-Westphalia State Social Court, Judgment of 23 April 2020 – L 7 AS 1772/19 – legally binding
revocation of the grant of basic income support for job seekers – consideration of income – no obligation to hold a hearing in the case of complete revocation due to income generation |
Guidance (Editor):
Reimbursement of costs pursuant to Section 63 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X) is excluded, as a hearing prior to the revocation notice pursuant to Section 24 Paragraph 2 No. 5 of the German Social Code, Book X (SGB X) could be waived (Saxony State Social Court decision of July 24, 2014 – L 3 AS 138/12 NZB).
Source: socialcourtsability.de
2.8 – LSG Saxony, Judgment of May 28, 2020 (L 3 AS 64/18):
Guiding principle by Dr. Manfred Hammel:
A sanction for failure to report pursuant to Section 32 Paragraph 1 Sentence 1, Alternative 1 of the German Social Code, Book II (SGB II), requires that the job center has thoroughly informed the recipient of unemployment benefit II (Alg II) in advance about the reporting appointment, i.e., the time, location, and purpose of the report. A benefit recipient must demonstrably have received a sufficiently specific request to report in accordance with Section 59 of the German Social Code, Book II (SGB II), in conjunction with Section 309 of the German Social Code, Book III (SGB III).
According to Section 40 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 37 Paragraph 2 Sentence 3, Second Half-Sentence of the German Social Code, Book X (SGB X), the Jobcenter bears the objective burden of proof for the proper notification of a reporting requirement if the recipient of unemployment benefit II (Alg II) denies having received this requirement.
If a job center sends an invitation letter by regular mail, then this SGB II provider accepts that the receipt of this letter by the benefit recipient cannot be proven via a delivery receipt.
If a recipient of unemployment benefit II repeatedly denies receiving documents from the job center, then it is the duty of the SGB II provider to counter these claims in an appropriate manner, namely by choosing a method of dispatch with proof of delivery.
Note:
The Higher Social Court of Saxony (judgment of May 28, 2020 – L 3 AS 64/18) clarified that if an authority disputes receipt of a letter, the authority must prove receipt. This also applies if the plaintiff's statements are not entirely truthful. The Higher Social Court refers, of course, to Section 37 Paragraph 2 Sentence 3 of the German Social Code, Book X (SGB X).
Further information: Thomé Newsletter 29/2020 from August 24, 2020
2.9 – LSG Hessen, decision of August 5, 2020 – L 6 AS 362/20 B ER
Social security benefits (SGB II) for Bulgarian sex worker after pandemic-related work ban
Lawyer Elisabet Poveda Guillén from Frankfurt successfully obtained a ruling from the Higher Social Court of Hesse (6th Senate, ruling of August 5, 2020; L 6 AS 362/20 B ER) granting a Bulgarian self-employed sex worker benefits under the German Social Code, Book II (SGB II). The woman had to cease or interrupt her self-employment as a sex worker due to the ban on her work during the COVID-19 pandemic. Since there is little positive case law on this specific situation, the ruling will be presented in more detail below. A comprehensive commentary by the lawyer is also provided below. An updated overview of case law with positive court decisions regarding benefit claims by EU citizens can be found here.
See also the guiding principle by Dr. Manfred Hammel:
A Bulgarian woman who has been working as a self-employed prostitute in Germany for years, and who has been prohibited from continuing this activity due to the Corona pandemic, is not excluded from eligibility for benefits under Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Sections 19 et seq. of the SGB II, pursuant to Section 7 Paragraph 1 Sentence 2 No. 2b) of the SGB II.
This person is not residing in the federal territory for the purpose of seeking employment, but can rely on the continued validity of their right to freedom of movement (Section 2 Paragraph 2 No. 2 of the Freedom of Movement Act/EU in conjunction with Section 2 Paragraph 3 Sentence 1 No. 2 of the Freedom of Movement Act/EU).
Following the legalization of prostitution associated with the Prostitutes Protection Act 2016, it can no longer be considered questionable whether the applicant, who had been practicing this activity predominantly within the federal territory for years until the official prohibition, was a self-employed person established within the meaning of Section 2 Paragraph 2 No. 2 of the Freedom of Movement Act/EU.
During this period, she managed to earn an income that allowed her to live without relying on public welfare benefits, was registered with the relevant regulatory authority in accordance with Section 3 Paragraph 1 of the Prostitution Protection Act, and was repeatedly checked by the police without any issues.
These facts argue against the continued practice of abusive conduct.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Hildesheim Social Court – Case No.: S 38 AS 1417/17 dated 14 July 2020
Legal provisions: Section 32 SGB II – Keywords: Sanction, Information on legal consequences
Guiding principle (Editor):
If the job center states categorically in the legal consequences information that a certificate of being bedridden is necessary, it falsely creates the impression – regardless of any possible exceptional case – that this is necessarily required in every case, and this is unlawful.
Guidance (Editor)
1. According to established case law, however, a statement of legal consequences must not contain any superfluous or incorrect information that could confuse or deter the beneficiary.
2. However, this is precisely the case here. The instructions regarding legal consequences state that illness can constitute a valid reason for not attending the appointment. A certificate of being bedridden is required for this purpose. However, to prove that illness prevents someone from attending an appointment, a "normal" certificate of incapacity for work is not even necessary. The valid reason must be objectively verifiable, so that even without a certificate of incapacity for work, the illness-related impediment can be proven, if necessary, by other evidence such as witnesses.
3. According to higher court rulings, the benefit provider can indeed request that a medical certificate be submitted in the future, stating that the summoned person is unable to attend a scheduled appointment due to illness. However, according to case law, this is only permissible in justified exceptional cases, e.g., in cases of repeated failure to report appointments. Such a case is not apparent here with regard to the invitation of May 8, 2017, nor has it been alleged by the defendant.
4. Furthermore, considerable doubts remain regarding the admissibility of a reduction in benefits under Section 32 of the German Social Code, Book II (SGB II), because the invitation is not an invitation to a simple reporting appointment, but rather an invitation to the date of a measure within the meaning of Section 2 Paragraph 1 Sentence 2 of the SGB II. However, a refusal to participate in a measure would have to be sanctioned under Section 31 of the SGB II and cannot be sanctioned under Section 32 of the SGB II.
Source: www.anwaltskanzlei-adam.de
3.2 – Cologne Social Court, judgment of August 11, 2020 (S 15 AS 456/19):
Guiding principle Dr. Manfred Hammel:
The need claimed by a needy upper secondary school student for the purchase of a laptop and printer for participation in school lessons (including the necessary preparation and follow-up) is not included in the standard allowance according to § 20 para. 1 SGB II and can be financed on the basis of § 21 para. 6 SGB II.
The purchase of an item that is absolutely essential for school attendance and for ongoing use can also constitute an ongoing need within the meaning of Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II). The amount of the costs incurred here (EUR 450) is not objectionable.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Hamburg State Social Court, Judgment of 18 June 2020 – L 4 SO 7/19
Social assistance – assistance in other life situations – assumption of funeral costs – unreasonableness of bearing the costs – case-by-case review – late application – economic feasibility – need both at the time the payment is due and at the time of the official decision
Guiding principle (Editor):
Although a claim for reimbursement of funeral costs requires an application, it does not stipulate a deadline for this.
Guidance (Editor)
1. The plaintiff's claim is not precluded simply because he has already paid the bills incurred in connection with his father's funeral.
2. Section 74 of the German Social Code, Book XII (SGB XII) does not necessarily link the entitlement to reimbursement of costs to the neediness of the person liable for payment, but rather uses the independent requirement of unreasonableness as a prerequisite for entitlement, thus occupying a special position within social assistance law (Federal Social Court [BSG], Judgment of April 4, 2019 – B 8 SO 10/18 R). This provision differs from other benefits under Chapters Five to Nine, among other things, in that the need may already be met (before the application is submitted), meaning that a state of emergency, which other social assistance entitlements regularly require, no longer needs to exist. According to Section 74 SGB XII, the obligation of the responsible social assistance provider only requires that the costs (which may already have been paid) are "necessary" and that it cannot be "reasonable" for the person liable for payment to bear these costs (permanently) (Federal Social Court [BSG], Judgment of April 4, 2019 – B 8 SO 10/18 R).
3. However, for a claim under § 74 SGB XII, the requirement of unreasonableness of bearing the costs is not met.
5. While a claim for reimbursement of costs requires an application, it does not specify a deadline for this. Therefore, a longer delay cannot (provided the statute of limitations is not applicable) automatically lead to the assumption of reasonableness and thus to the forfeiture of the claim. Rather, the reasonableness of the situation must always be examined on a case-by-case basis, even in the case of a late application (see also Siefert, juris PK SGB XII, § 74 Rn. 15). It is permissible, however, to consider the late application within this context. In individual cases, the late timing of the application – viewed in conjunction with all other circumstances of the case – may well contribute to the finding of reasonableness. However, no general presumption can be established in this regard.
6. Given his economic circumstances, and in particular his earned income, it was entirely reasonable to expect the plaintiff to bear the full funeral expenses he claimed (which is why the question of the amount of costs the defendant might have to acknowledge is irrelevant).
Source: socialcourtsability.de
Legal tip (Editor):
Stade Social Court, judgment of January 21, 2015 – S 33 SO 31/14
Social assistance – funeral expenses – application process – reasonable deadline – no forfeiture
Guiding principle (Editor)
1. In individual cases, the social welfare provider is also obliged to cover funeral costs if an application is submitted more than 13 months after the funeral costs were incurred.
2. The late filing of the application does not automatically imply that the assumption of costs is now reasonable solely due to the passage of time, especially since the claim under Section 74 XII is not subject to a time limit according to the wording of the law.
4.2 – Berlin-Brandenburg State Social Court, decision of 29 June 2020 – L 15 SO 95/19 NZB – legally
binding; interest; complete application for benefits; necessity of a follow-up application for basic income support benefits for the elderly and those with reduced earning capacity
Regarding the question of whether a follow-up application is necessary for basic income support benefits for the elderly and those with reduced earning capacity (GruSi) pursuant to Section 41 of the German Social Code, Book XII (SGB XII), and whether the (complete) existence of this follow-up application is relevant for the examination of the provision of Section 44 Paragraph 2 of the German Social Code, Book I (SGB I)
Guidance (Editor)
1. An application for basic income support, once submitted, does not need to be resubmitted for reasons of administrative simplification. This means that the basic income support provider may not wait for an application from the recipient after the end of the approval period, but must examine ex officio whether basic income support should continue to be granted.
2. The plaintiffs would have been obligated under their notification obligations pursuant to Sections 60 et seq. of the German Social Code, Book I (SGB I), to report if an eviction had taken place. However, reporting that no change in the stated circumstances had occurred was not among their obligations.
Principle (Juris):
The question of whether a follow-up application is necessary for basic income support benefits for the elderly and those with reduced earning capacity pursuant to Sections 41 et seq. of Book Twelve of the German Social Code, and whether the (complete) existence of this follow-up application is relevant for the examination of the provision of Section 44 Paragraph 2 of Book One of the German Social Code, does not require clarification. Sufficient guidance for answering this question is already provided by the case law of the Federal Social Court.
Source: socialcourtsability.de
5. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Note on: LSG Darmstadt 6th Senate, Judgment of 11.03.2020 – L 6 AS 471/19
Author: Dr. Jens Blüggel, Presiding Judge of the Higher Social Court (RiLSG)
On the fictitious final determination of provisional benefits pursuant to Section 41a Paragraph 5 of the German Social Code, Book II (SGB II).
Guiding principles
1. Even during pending court proceedings concerning a preliminary decision, it may be fictitiously transformed into a final determination pursuant to Section 41a Paragraph 5 of the German Social Code, Book II (SGB II); this becomes the subject of the court proceedings.
2. a) On the unobjectionable admission to an expansion of the claim in the appeal proceedings.
b) The State Social Court has jurisdiction to decide on a claim that has been extended in the appeal proceedings.
Continue reading on Juris www.juris.de
5.2 – Amendment to the Residence Act
The Residence Act was amended in several places relatively unnoticed on June 24, 2020. These amendments were hidden in Article 26a of the "Seventh Act Amending Book Four of the Social Code and Other Laws" and, at least until now, completely escaped my notice. The aforementioned amendments were only introduced later in the legislative process; therefore, the explanatory memorandum can be found in a separate document (from page 30, explanatory memorandum from page 62). They primarily concern clarifications regarding access to the labor market for persons with residence permits for employment or education/studies, but also changes to the regulations on fines for unauthorized employment and for holders of a tolerated stay permit for employment who fail to properly report the loss of their job to the immigration office
5.2 – Hartz IV: County must recalculate rent ceiling
A job center in Augsburg must pay a Hartz IV recipient from Stadtbergen a higher housing allowance, according to a ruling by the Augsburg Social Court. The housing allowance table will now be used temporarily to calculate the so-called "reasonable rent limit" in the Augsburg district. This could mean that other affected individuals could also be entitled to a higher allowance.
A single woman from Stadtbergen, represented by Augsburg lawyer Daniel Zeeb, successfully sued the Augsburg Social Court to obtain a higher housing allowance, which is paid by the job center as part of basic income support. The Hartz IV recipient had previously received a gross rent allowance of €425 per month. As a result of the court ruling, her rent allowance for the months of May through September 2019 will now be €477.40.
Since she was entitled to roughly 50 euros more per month for this period than under the previously applicable calculation, the court concluded that the calculation of the rent ceiling for the district of Augsburg was not lawful.
More information: www.augsburger-allgemeine.de
Note:
SG Augsburg: Augsburg district has no coherent concept
Guidance (Attorney Daniel Zeeb, Augsburg):
The adequacy limit set by the Augsburg Land Job Center for the period from July 1, 2018, onwards is not based on a coherent concept. Unfortunately, the value according to Section 12 of the Housing Benefit Act plus 10 percent does not result in a higher value than the previously applied adequacy limit in all municipalities.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
