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 May 14, 2020 – B 14 AS 7/19 R
Deletion of bank statements:
Job centers are allowed to store bank statements and other important documents about the income situation of Hartz IV recipients for ten years.
Principle (Editor):
The job center was and is allowed to keep copies of bank statements containing information on credit entries in the benefit file for a period of ten years after notification of the benefit approval, provided that it has allowed the possibility of redacting non-benefit-relevant information about the payees of direct debits.
Source: socialcourtsability.de
1.2 – BSG, judgment of May 14, 2020 – B 14 AS 10/19 R
Basic income support for job seekers – social law administrative procedure – review procedure – revocation and reimbursement notice – applicability of Section 40 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II nF) to review applications submitted before August 1, 2016 – sufficient specificity
Section 40 Paragraph 1 Sentence 2 of the German Social Code, Book 2 (SGB 2), in the version applicable from August 1, 2016, is not applicable to review applications submitted up to July 31, 2016.
Guidance (Editor)
1. The cancellation and reimbursement notice must be withdrawn due to a lack of sufficient specificity.
2. A partial suspension of benefits to secure subsistence extending over several months is only sufficiently specific within the meaning of Section 33 Paragraph 1 of the German Social Code, Book X (SGB X), insofar as the changing partial amounts for each month can be individually ascertained from it.
3. The exclusion clause of Section 40 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) does not preclude a review application submitted before its entry into force, and the contested revocation and reimbursement decision must be revoked.
Source: socialcourtsability.de
1.3 – BSG, judgment of July 3, 2020 – B 8 SO 2/19 R
Guidance note (Editor):
Reimbursement of costs by the caregiver is possible in the event of loss of membership in the statutory health and long-term care insurance.
Source: socialcourtsability.de
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 14 August 2020 – L 4 AS 13/20
Cooperative shares as a loan or as a grant, here as a loan
Guiding principle (Editor)
1. The lack of completed vocational training and the resulting difficulties in finding employment are not an atypical situation for recipients of benefits under the German Social Code, Book II (SGB II).
2. The Senate has no constitutional concerns regarding the granting of benefits in the form of loans for cooperative shares.
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 27 August 2020 – L 31 AS 727/18
Limitation of liability for minors; attribution of knowledge § 38 SGB II; authorization of a parent
Principle (Juris):
1. Section 1629 of the German Civil Code (BGB) does not imply for the purposes of the German Social Code, Book II (SGB II), that both parents must submit an application for benefits for the minor to the job center. The relevant provisions are Section 38 of the SGB II and Sections 166 and 278 of the BGB.
2. A minor who has reached the age of majority is liable with all assets they possess on their 18th birthday. Exemptions from seizure are not to be considered when limiting liability to the assets actually available.
Source: socialcourtsability.de
3. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
3.1 – Hamburg State Social Court, Judgment of 02.09.2020 – L 2 AL 5/20
Plaintiff's application for equal treatment pursuant to Section 2 Paragraph 3 of the Ninth Book of the German Social Code (SGB IX)
Guidance (Editor)
1. The purpose of equality, namely improving the competitive opportunities of disabled people in the workplace or on the labor market, is not achieved if the performance requirements of the specific job cannot be met from the outset or if the specific activity leads to an increasing deterioration of health, which in all likelihood leads to a further deterioration of competitive opportunities.
2. If the criterion of a suitable – currently held – workplace is lacking, there is no entitlement to equal treatment (cf. LSG Baden-Württemberg, judgment of 28.2.2014 – L 8 AL 501/13, and Federal Social Court, judgment of 6.8.2014 – B 11 AL 16/13 R).
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Freiburg Social Court, Judgment of 11 August 2020 – S 9 SO 2008/19
Principle (Juris)
1. When calculating the value of the estate for the reimbursement of costs pursuant to Section 102 of the German Social Code, Book XII (SGB XII), claims of the heir against the testator that were extinguished by merger upon the death of the testator are to be regarded as not extinguished in accordance with Sections 1976, 1991 para. 2, 2143, 2175 and 2377 of the German Civil Code (BGB).
2. Compensation for pain and suffering received by the deceased or the estate, on the other hand, is to be added to the gross estate relevant for the reimbursement of costs pursuant to Section 102 of the German Social Code, Book XII (SGB XII), and is not protected under either Section 83 Paragraph 2 of the SGB XII or Section 90 Paragraph 3 of the SGB XII.
Source: socialcourtsability.de
4.2 – Freiburg Social Court, Judgment of 23 June 2020 – S 9 SO 3014/18 – legally binding
Assumption of an additional utility bill payment, here affirmed because there is no conclusive concept – increased water consumption
Guidance (Editor)
1. Unlike heating costs, water consumption costs cannot be subjected to a separate assessment of reasonableness from the gross rent. This is because water consumption costs are included in the operating costs that must be factored into the gross rent, as the wording of Sections 35 of the German Social Code, Book XII (SGB XII), and 22 of the German Social Code, Book II (SGB II), and subsequently also the rulings of the Federal Social Court (BSG), explicitly mention only heating costs and the costs of the central hot water supply as needs to be assessed separately. Accommodation costs in the form of the actual gross rent including water consumption costs are therefore generally to be covered as reasonable, as long as the gross rent as a whole is abstractly reasonable (see already Social Court Frankfurt/Oder, judgment of 30 May 2012, file no. S 28 AS 3192/10; contra the 6th Chamber of the Social Court Freiburg, 15 April 2011 – S 6 AS 3782/09).
2. Contrary to the defendant's assumption, the plaintiff's actual expenses for gross rent did not exceed the abstractly reasonable amount. According to the case law of the Federal Social Court (BSG) and the Higher Social Court of Baden-Württemberg (LSG), the defendant's method for determining reasonable gross rent for the Freiburg metropolitan area, to which the plaintiff's municipality of residence belongs, did not meet the minimum legal requirements for the plausibility of such methods during the period in question and, due to the passage of time, could no longer be improved. Therefore, the table values of Section 12 of the Housing Benefit Act (WoGG) plus a 10% safety margin must be applied, and rent level VI must be used as the basis for the Freiburg metropolitan area (LSG Baden-Württemberg, judgment of December 6, 2018, case no. L 7 AS 4457/16, citing BSG judgment of June 16, 2015, case no. B 4 AS 44/14 R).
Principle (Juris):
Due to the gross rent concept chosen by the legislator, the abstract appropriateness of housing costs must be assessed uniformly for the gross rent. An isolated reduction of benefits for individual components of the gross rent (such as water consumption) due to inappropriateness is therefore not permissible as long as the sum of the basic rent and operating costs is, in general terms, appropriate.
Source: socialcourtsability.de
5. Decisions on asylum law and asylum seekers' benefits
5.1 – Mecklenburg-Vorpommern State Social Court, decision of 13 September 2020 – L 9 AY 9/20 B ER
Matters under the Asylum Seekers' Benefits Act
Because so-called open church asylum constitutes neither a legal nor a factual obstacle to deportation, foreigners subject to deportation whose stay has been extended as a result of seeking church asylum cannot be accused of having abused their rights by influencing the duration of their stay within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act.
Source: www.landesrecht-mv.de
Legal tip:
cf. decision of the Hessian State Social Court of June 4, 2020 – L 4 AY 5/20 B ER; contra Bavarian State Social Court, judgment of May 28, 2020 – L 19 AY 38/18
5.2 – Freiburg Social Court, Judgment of 11 August 2020 – S 9 AY 1173/20
Standard benefit level 1 in collective accommodations
Guidance (Editor)
1. Whether Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable since September 1, 2019, requires a constitutionally compliant interpretation, based on which the plaintiff would also be entitled to benefits according to standard benefit level 1 when applying the new version of the standard, can therefore remain open.
2. However, there are strong arguments in favor of such a constitutionally compliant interpretation, either in the form of requiring, as an unwritten element of the offense, the actual and verifiable communal household management of the benefit recipient with other persons housed in the collective accommodation, for which the objective burden of proof lies with the benefit provider (see LSG Mecklenburg-Vorpommern, decision of 10 June 2020, file no. L 9 AY 22/19 B ER regarding the parallel provision § 3a para. 1 no. 2 b) and para. 2 no. 2 b) AsylbLG, (juris)) or by analogy to § 27a para. 1 sentence 1 no. 2 SGB XII, a deviating standard benefit determination in the amount of standard benefit level 1 is made if an adult asylum seeker benefit recipient living in communal accommodation cannot objectively achieve the savings effects underlying standard benefit level 2 due to the specific circumstances of the individual case (SG Freiburg, Decision of 20 March 2020, file number S 9 AY 776/20 ER, not published).
Principle (Juris):
The transitional provision § 15 AsylbLG (Asylum Seekers' Benefits Act) must be interpreted in a manner consistent with the constitution, such that it encompasses all amendments to § 2 AsylbLG that entered into force on or after August 21, 2020. In particular, its scope is not limited to the extension of the waiting period by the Second Act to Improve the Enforcement of the Obligation to Leave the Country, but also includes the changes to the standard benefit system by the Third Act Amending the AsylbLG.
Source: socialcourtsability.de
6. Miscellaneous on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Note on: Federal Constitutional Court, First Senate, First Chamber, decision of 8 July 2020 – 1 BvR 932/20
Author: Prof. Dr. Daniela Evrim Öndül
Requirements for the justification in expedited social court proceedings with regard to the exclusion of EU citizens from benefits under the German Social Code, Book II (SGB II)
Principle
1a. If, without the granting of preliminary legal protection, the applicant faces severe and unreasonable impairments that cannot be averted in any other way and that could no longer be remedied by the main proceedings, the specialized courts may only consider the prospects of success in the main proceedings if they can examine the factual and legal situation not merely summarily, but conclusively. Such a conclusive examination is, however, only possible if a complete clarification of the factual and legal situation is possible in the preliminary injunction proceedings (cf. Federal Constitutional Court, Decision of November 20, 2018 – 2 BvR 80/18, para. 8).
1b. If a clarification of the factual and legal situation corresponding to the threatened violation of fundamental rights is not possible in the expedited proceedings, a balancing of interests must be carried out (cf. Federal Constitutional Court, decision of 14 March 2019 – 1 BvR 169/19 para. 15 with further references; established case law).
2a. A final examination is not precluded in principle if the legal dispute involves difficult, unresolved, or highly contentious legal questions. However, the court must consider that such an examination in preliminary proceedings affects the applicant's ability to influence the decision-making process in the main proceedings and within the framework of legally prescribed appeal procedures (see Federal Constitutional Court, judgment of August 1, 2019 – 2 BvR 1556/17, para. 11).
2b. If, during the examination of the prospects of success of the case in summary proceedings, a highly contentious legal question arises, then, in the context of a "final" decision in the sense described above, at least a brief discussion of the state of opinion may be required (cf. Federal Constitutional Court of 01.08.2019 – 2 BvR 1556/17 para. 14).
3. Here:
3a. The challenged decision does not sufficiently explain why there were no prospects of success on the merits. With regard to the highly controversial question of whether Section 11 Paragraph 1 Sentence 11 of the Freedom of Movement Act/EU 2004 in conjunction with Section 28 Paragraph 1 Sentence 1 No. 3 of the Residence Act 2004 (by analogy) and Article 18 Paragraph 1 TFEU can grant a right of residence to the parent with custody of a minor EU citizen entitled to freedom of movement, the Higher Social Court should not have merely referred to its own decisions from August 2019 and earlier. Rather, it should have addressed considerations of the Federal Constitutional Court (reference to Federal Constitutional Court, Decision of October 4, 2019 – 1 BvR 1710/18 on that unresolved legal question), which the lower court decisions cited by the Higher Social Court could not yet take into account.
3b. Furthermore, the State Social Court should have assessed the consequences of its proposed solution—the return of the second appellant to his home country and thus his separation from his family—at least briefly, in light of Article 6 of the Basic Law and Article 8 of the European Convention on Human Rights (ECHR). The mere reference to the care of the children by his partner is insufficient for this purpose.
4. Setting the value of the subject matter at 25,000 euros.
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Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
