1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, judgment of June 24, 2020 – B 4 AS 9/20 R
Guiding principle (Editor):
A one-off payment cannot be considered as income during the distribution period if it has already been used for purposes other than to cover a current emergency and is therefore no longer suitable to cover the specific needs in the respective month (for the use of an income tax refund).
Guidance (Editor)
1. An employable person entitled to benefits cannot be referred to the use of an overdraft facility based on an existing current account agreement as a "readily available means" to cover their living expenses if they have previously used income received to pay off the debit on this account (left open in BSG judgment of 29.04.2015 – B 14 AS 10/14 R).
2. The possibility of using an overdraft facility to cover living expenses, combined with an increased interest burden, does not constitute unrestricted access to a one-off income and therefore does not represent "readily available" funds, even if, after receiving a one-off income and paying off the associated debt, the person concerned has not reduced the granted overdraft limit due to a current account agreement and has thus maintained the possibility of using the overdraft facility.
Source: www.bsg.bund.de
1.2 – BSG, Judgment of June 24, 2020 (B 4 AS 8/20 R):
Guiding principle Dr. Manfred Hammel:
A job center may not divide a credit note obtained from an operating cost statement as income in accordance with Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in conjunction with Section 22 Paragraph 3 of the SGB II over a total of six months in accordance with Section 11 Paragraph 3 Sentence 4 of the SGB II, even if the entitlement to benefits is completely eliminated by taking this credit note into account as income in the month in question.
Income derived from accommodation-related refunds and credits must always be deducted directly from the expenses for accommodation and heating (Section 22 Paragraph 1 Sentence 1 SGB II) in order to achieve a corresponding relief for the municipal authorities.
Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) contains a special provision that precludes the distribution of such repayments and credits as a one-off payment within the meaning of Section 11 Paragraph 3 Sentence 4 of the German Social Code, Book II (SGB II).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Lower Saxony-Bremen, decision of 26.08.2020 – L 13 AS 143/20 B ER
Assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) – relocation within the comparison area – preliminary legal protection – anticipation of the main proceedings
Principle (Juris)
1. Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) also applies to moves within the comparison area.
2. In the case of relocations within the comparison area, the locally responsible agency must continue to examine the necessity of the relocation as part of the assurance procedure according to § 22 para. 4 SGB II.
3. For reasons of the effectiveness of legal protection, it is permissible under strict conditions to require the responsible agency to issue a final assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), even in the preliminary legal protection proceedings.
Source: www.rechtsprachung.niedersachsen.de
2.2 – Lower Saxony-Bremen State Social Court, decision of 31.08.2020 – L 13 AS 132/20 B ER
Basic income support for job seekers – additional needs due to costly diet – dietary supplements – gastric bypass surgery – medical necessity of lifelong nutrient supplementation
Principle (Juris):
An additional need according to § 21 para. 5 SGB II is possible if the intake of food supplements is medically indicated.
Source: www.rechtsprachung.niedersachsen.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Hannover, Judgment of 11 June 2020 – S 43 AS 3130/19 – Direct appeal allowed
Distribution of the repayment due to operating cost statements across the months of the benefit period when the benefit entitlement is finally determined; no inclusion of a reimbursement administrative act in the action against preliminary benefit decisions pursuant to Section 96 Paragraph 1 of the Social Court Act (SGG) when the benefit entitlement is finally determined
Principle (Juris):
a) When making the final determination of entitlement to benefits after provisional approval pursuant to Section 41a Paragraph 4 of the German Social Code, Book II (SGB II), repayments and credits attributable to the need for accommodation and heating (here: repayment from utility bills) must be distributed over the months of the approval period as average monthly income, since Section 41a Paragraph 4 SGB II contains a more specific provision for final decisions regarding the month or months in which the income is taken into account (lex specialis derogat lege generali), in relation to Section 22 Paragraph 3 SGB II. Otherwise, the regulatory content of Section 22 Paragraph 3 SGB II remains in effect, so that no adjustment for deductions pursuant to Section 11b SGB II is required when calculating the repayment or credit, as Section 41a Paragraph 4 SGB II only provides a partial regulation, namely regarding the month or months in which the income is taken into account.
b) Administrative acts relating to reimbursement in reimbursement notices upon final determination of the entitlement to benefits – unlike the administrative acts relating to the final determination of the entitlement to benefits – are not the subject of the action against the preliminary grant notice pursuant to Section 96 Paragraph 1 of the Social Court Act (SGG), since there is no identical subject matter, as the operative provisions of the administrative acts relating to reimbursement are for reimbursement and not for granting.
Source: www.rechtsprachung.niedersachsen.de
3.2 – Social Court Hildesheim, judgment of July 14, 2020 (S 38 AS 1417/17):
Guiding principle Dr. Manfred Hammel:
A sanction for failure to report in accordance with Section 32 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) cannot be imposed if the reporting request issued by the job center 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) does not contain a correct instruction on the legal consequences.
A statement of legal consequences must not contain any superfluous or incorrect information that could confuse or deter a person entitled to benefits.
This is the case when the job center states in the legal consequences information that an illness could constitute an important reason to stay away from this appointment, but that a certificate of being bedridden must be submitted.
This is not the only way to demonstrate a valid reason to the SGB II provider within the meaning of Section 32 Paragraph 1 Sentence 2 of the SGB II. This can also be done through other means of evidence (such as witnesses).
The request to provide a certificate of being bedridden is only permissible in exceptional cases with special justification (e.g., in the case of multiple failures to report).
An unjustified refusal to participate in a job placement program (Section 2 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) in conjunction with Sections 16 et seq. SGB II) must be sanctioned as a breach of duty under Section 31 SGB II and not as a failure to report under Section 32 SGB II. The summons issued here was not for a simple appointment, but for an appointment at a vocational integration program ("Job Academy").
3.3 – SG Augsburg, judgment of May 20, 2020 – S 11 AS 863/19
SG Augsburg: Augsburg district has no coherent concept
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.
More information: www.augsburger-allgemeine.de
Full text now available: sozialgerichtsbarkeit.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Saxony State Social Court, Judgment of 29 August 2019 – L 8 SO 6/18 – Appeal pending before the Federal Social Court – B 8 SO 13/20 R
Guidance (Editor):
Regarding the reimbursement of travel expenses for an accompanying person for a holiday trip on a cruise ship within the framework of integration assistance, here rejected.
Guiding principle (Editor)
1. As a benefit for participation in community and cultural life, costs for holiday trips and leisure activities can also be covered in individual cases. However, this is conditional upon the vacation or holiday at least mitigating the effects of the disability and contributing to the integration of the claimant into society, particularly by promoting interaction with non-disabled people (§ 58 No. 1 SGB IX a. F.), whereby it must also be taken into account whether the disabled person is already integrated into society in another way (see, for example, the Higher Social Court [LSG] Mecklenburg-Vorpommern, judgment of 17 August 2016 – L 9 SO 15/15 – juris para. 28; Higher Social Court of Hesse, judgment of 24 February 2016 – L 4 SO 27/14 – juris para. 74 ff.; Higher Social Court of Hamburg, judgment of 20 November 2014 – L 4 SO 31/12 – juris para. 21; LSG Baden-Württemberg, Judgment of 30 August 2012 – L 7 SO 1525/10 – Headnote 1; Thuringian Higher Social Court, Judgment of 23 May 2012 – L 8 SO 640/09 – juris para. 27; North Rhine-Westphalia Higher Social Court, Judgment of 17 June 2010 – L 9 SO 163/10 – juris para. 32; Düsseldorf Social Court, Judgment of 12 November 2010 – S 17 SO 109/09 – juris para. 32; Wehrhahn, in: Schlegel/Voelzke, jurisPK-SGB XII, 2nd ed. 2014, § 54 para. 51; Scheider, in: Schellhorn/Hohm/Scheider, SGB XII, 19th ed. 2015, § 54 RdNr. 65.2; Bieback, in: Grube/Wahrendorf, SGB XII, 6th ed. 2018, § 54 RdNr. 46).
2. Not every vacation trip fulfills the concept of participation and thus obligates the social welfare provider to cover the associated costs. The cruise undertaken by the plaintiff does not serve participation goals in the sense of eliminating or mitigating the consequences of a disability (§ 53 para. 3 SGB XII), but rather, as with non-disabled people, the primary purpose is recreation and enjoyment.
3. The assumption of costs for an accompanying person (§ 22 of the Integration Assistance Ordinance) requires that these costs have arisen as a consequence of a necessary integration assistance measure. This is not the case here.
Source: socialcourtsability.de
5. Decisions on asylum law and asylum seekers' benefits
5.1 – LSG North Rhine-Westphalia, Judgment of June 8, 2020 (L 20 AY 40/19):
Guiding principle Dr. Manfred Hammel:
The benefits regulated in § 2 para. 1 sentence 1 AsylbLG commence on the exact day after the expiry of the waiting period mentioned therein.
This assistance is not to be granted from the first day of the month following the month in which this deadline expired.
Section 1 paragraph 3 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not apply here. This provision only regulates the end of the entitlement to benefits as such, but not the transition from the receipt of benefits under Section 3 AsylbLG ("basic benefits") to those under Section 2 paragraph 1 sentence 2 AsylbLG ("analogous benefits") within a still existing entitlement to benefits pursuant to Section 1 paragraph 1 no. 4 AsylbLG.
Section 1 paragraph 3 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) concerns the fundamental entitlement to benefits under the AsylbLG; Section 2 paragraph 1 sentence 1 of the AsylbLG only concerns the modalities of benefits within the framework of an entitlement existing under Section 1 paragraph 1 of the AsylbLG.
Therefore, only Sections 187 et seq. of the German Civil Code (BGB) are applicable for calculating the time limit according to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
5.2 – Lower Saxony-Bremen State Social Court, decision of 09.07.2020 – L 8 AY 52/20 B ER
Basic benefits according to §§ 3, 3a AsylbLG corresponding to needs level 2 for persons accommodated in collective accommodations and (no) preliminary legal protection
Principle (Juris)
1. Different information regarding identity (name, date of birth, etc.) during the asylum procedure generally constitutes an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
2. Holders of a temporary suspension of deportation pursuant to Section 60b of the Residence Act are entitled to benefits pursuant to Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act.
3. Regarding the factual prerequisites for accommodation in a communal accommodation facility within the meaning of Section 3a Paragraph 1 No. 2 lit. b, Paragraph 2 No. 2 lit. b AsylbLG.
4. A constitutionally compliant interpretation of Section 3a Paragraph 1 No. 2 lit. b, Paragraph 2 No. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG), according to which the application of needs level 2 presupposes, as an unwritten element of the offense, the actual and verifiable joint household management of the benefit recipient with other persons accommodated in collective accommodation, is not possible, at least in preliminary injunction proceedings, despite existing doubts about the constitutionality of the statutory provisions (similarly, Higher Social Court Berlin-Brandenburg, judgment of May 29, 2020 – L 15 AY 14/20 B ER, L 15 AY 15/20 B ER PKH – juris para. 15 et seq.; contrary to Higher Social Court Mecklenburg-Western Pomerania, judgment of June 10, 2020 – L 9 AY 22/19 B ER – juris para. 17 et seq.; Social Court Landshut, judgment of January 23, 2020 – S 11 AY 79/19 ER – juris para. 40 ff.; SG Landshut from January 28th, 2020 – S 11 AY 3/20 ER – juris Rn. 63 ff.; SG Munich from February 10, 2020 - S 42 AY 82/19 ER - juris Rn. 56 f.).
5. When determining the value of the subject matter of the appeal within the meaning of Section 144 Paragraph 1 Sentence 1 Number 1 of the Social Court Act (SGG), insofar as it concerns the granting of ongoing subsistence benefits, a benefit period of (a maximum of) twelve months must generally be assumed, at least in preliminary legal protection proceedings (continuation of the decisions of the Higher Social Court of Celle-Bremen of December 12, 2016 – L 8 AY 51/16 B ER = FEVS 68, 561 = juris para. 8, of August 17, 2017 – L 8 AY 17/17 B ER – juris para. 4 and of September 12, 2019 – L 8 AY 12/19 B ER – juris para. 10).
Source: www.rechtsprachung.niedersachsen.de
Legal tip:
aA. Very recent decision of the Social Court of Marburg, dated August 28, 2020 – S 9 AY 20/20 ER
The court already has considerable doubts as to whether Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) even provides a basis for a permanent exclusion of analogous benefits (see also Social Court Landshut, decision of 06.05.2019 – S 11 AY 38/19 ER).
The Chamber concurs with the view, as far as can be seen, that is the majority opinion on this issue in the case law of the social courts. A constitutionally compliant interpretation of the provision requires that, as an unwritten element of the offense, the actual and demonstrable shared household management of the benefit recipient with other persons housed in the communal accommodation is presupposed, for which the objective burden of proof and, in expedited proceedings, the burden of presentation lies with the benefit provider (see LSG Meckl.-Vorp., decision of 10 June 2020 – L 9 AY 22/19 B ER –, Juris para. 17 et seq.; Sächs. LSG, decision of 23 March 2020 – L 8 AY 4/20 B ER –, Juris para. 38; SG Landshut, decision of 28 January 2020 – S 11 AY 3/20 ER –, Juris para. 59 et seq.; decision of 23 January 2020 S 11 AY 79/19 ER –, Juris Paragraphs 38 et seq.; Decision of October 24, 2019 – S 11 AY 64/19 ER –, Juris paragraphs 53 et seq.; Social Court Frankfurt, Decision of January 14, 2020 – S 30 AY 26/19 ER –, Juris paragraphs 12 et seq.; Social Court Bremen, Decision of July 3, 2020 – S 39 AY 55/20 ER, Juris paragraphs 20 et seq.; Social Court Munich, Decision of February 10, 2020 – S 42 AY 82/19 ER –, Juris paragraph 57; Social Court Freiburg (Breisgau), Decision of January 20, 2020 – S 7 AY 5235/19 ER –, Juris paragraphs 33 et seq.; Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 2 AsylbLG Rn. 170; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG Rn. 41 ff.).
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Assistance for living expenses must not be so easily denied, a contribution by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
6.2 – Note on: LSG Essen 19th Senate, Judgment of 19.12.2019 – L 19 AS 1426/18
Author: Prof. Dr. Volker Wahrendorf, Chairman and former Judge of the State Social Court.
Limited right of residence for a Union citizen in the event of involuntary unemployment after less than one year and subsequent subsidized further training measure
Guiding Principles
1. The continued validity of the right of residence of a Union citizen in Germany based on employee status is permissible in the event of involuntary unemployment after less than one year of employment and is limited to six months in accordance with Section 2 Paragraph 3 Sentence 2 of the Freedom of Movement Act/EU 2004, even if the Union citizen participates in a further training measure funded by the Federal Employment Agency (BA), and leads to the exclusion from benefits after the expiry of the six months in accordance with Section 7 Paragraph 1 Sentence 2 No. 2 Letter b of the German Social Code, Book II (SGB II).
2. The exclusions from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) are in conformity with European law.
3. The provision of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) concerning the exclusion of Union citizens from basic income support benefits under the SGB II is constitutional.
Continue on Juris
Note:
Appeal pending before the Federal Social Court – B 4 AS 24/20 R
6.3 – Administrative Court Frankfurt (Oder), decision of June 30, 2010 (VG 3 L 240/20):
Guiding principle Dr. Manfred Hammel:
The significant health risk of a possible infection with the coronavirus SARS-CoV-2 due to the conditions present in a communal accommodation (§ 53 para. 1 AsylG) constitutes a serious and unreasonable disadvantage for an asylum seeker, which, however, can be averted in other ways than by the temporary lifting of the residence requirement imposed pursuant to § 60 para. 1 sentence 1 AsylG.
According to Section 53 Paragraph 1 of the Asylum Act, in particularly justified cases, a claim can also be made for single-room accommodation. This will significantly minimize the risk of possible infection with the coronavirus.
This applies particularly if the applicant's living conditions are not in accordance with the current SARS-CoV-2 handling regulations, i.e., the asylum seeker is housed with two other people in a 24.38 sq m passage room, which the two residents of the room immediately behind it also have to cross to enter their living space.
By remaining in a shared room with any third parties, a living space where the distancing requirement according to § 1 para. 2 sentence 1 SARS-CoV-2-UmgangsVO cannot be observed, the applicant is permanently exposed to an increased risk of infection with SARS-CoV-2.
In this situation, however, only a claim to individual accommodation can be made, not to accommodation outside of communal accommodation.
6.4 – Potsdam Administrative Court, decision of July 3, 2020 (VG 8 L 444/20.A):
Guiding principle Dr. Manfred Hammel
affirms accommodation outside of communal accommodation (§ 53 para. 1 AsylG) in the case of a severely physically ill asylum seeker who, for medical reasons, requires her own apartment with a bathroom.
This concerns a person with a higher risk of severe COVID-19 illness, for whom, according to Section 53 Paragraph 1 of the Asylum Act, a deviation from the standard case of accommodation in communal housing is permitted, and the competent authority must rent a suitable apartment in which this applicant is exposed to a significantly lower risk of infection.
6.5 – Vacation and Support
Unemployment benefits if you are ill abroad?
Even those registered as unemployed are allowed to travel. Their entitlement to unemployment benefits is not affected. But what happens if they become ill during their trip?
Those who are unemployed must be available for job placement. Therefore, there is a so-called residency requirement. However, travel is still permitted.
Anyone who becomes ill during a stay abroad is entitled to unemployment benefits. This was decided by the Stuttgart Social Court (case number: S 3 AL 3965/19), as reported by the legal portal anwaltauskunft.de of the German Bar Association (DAV).
Source: www.n-tv.de
Note:
SG Stuttgart, Judgment of 28.02.2020 – S 3 AL 3965/19
Unemployment benefit for the period of incapacity for work certified abroad
The Stuttgart Social Court has ruled that a stay outside the immediate vicinity of the employment agency does not preclude an entitlement to continued payment of benefits in the event of incapacity for work.
Summary: www.juris.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
