1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court, judgment of 3 September 2020 (B 14 AS 55/19 R):
Principle Dr. Manfred Hammel
§ 9 para. 2 SGB II does not permit the consideration of assets (§ 12 para. 1 SGB II) of the daughter living in the same household with her mother.
Section 9 Paragraph 5 of the German Social Code, Book II (SGB II) only has legal significance if there are indications that able-bodied relatives support their needy relatives in such a way that they manage their finances "from a single pot".
The legislator does not "expect" anything under this provision that is not permitted under family law. Regarding the question of the extent to which support payments can be claimed, the limits of parental asset management (§ 1626 para. 1 sentence 2 of the German Civil Code) must be considered. The fundamental aim of this fiduciary management is to preserve the child's assets for the child's benefit.
From a family law perspective, it is therefore generally considered a breach of duty if the child's money is used by the parents for their own purposes.
Mutual consideration of assets exists only within the household and is excluded in the relationship between the child and its parents.
Even wealthy relatives are not obligated to contribute their assets according to Section 9 Paragraph 5 of the German Social Code, Book II (SGB II). This provision does not apply if there is demonstrably no support in the form of income as defined in Section 11 Paragraph 1 Sentence 1 of the SGB II.
1.2 – BSG, Judgment of September 17, 2020 (B 4 AS 5/20 R):
Guiding principle Dr. Manfred Hammel:
The refusal by a job center to pay a placement fee based on an activation and placement voucher (AVGS – Section 16 Paragraph 1 Sentence 2 No. 2 SGB II in conjunction with Section 45 Paragraphs 4 and 6 SGB III) to a private placement agency constitutes an administrative act pursuant to Section 31 Sentence 1 SGB X.
Within this framework, a private employment agency can assert a public-law claim for payment against the responsible social security institution.
The obligation to submit documents pursuant to Section 45 Paragraph 4 Sentence 5 of the German Social Code, Book III (SGB III), which applies to private employment agencies, expressly refers to "the activation and placement voucher." It is incompatible with this obligation for such a private agency to submit only a copy, and not the original, of an activation and placement voucher to the social security agency. This is mandated by the principles of state budgetary law.
Submitting the original of this document eliminates any potential doubts at the time of application and speeds up the process, which is also in the interest of the private provider.
In order to align his placement activities with the content of the AVGS (Activation and Placement Voucher), the private placement agency also requires that he always has knowledge of the complete and correct content of this document when he begins his work.
At the latest when the private intermediary claims payment of a fee from the responsible social authority, the original AVGS voucher, which is constitutive for this legal relationship, must also be submitted to the job center or the employment agency.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Schleswig-Holstein State Social Court, Judgment of 23 October 2020 – L 3 AS 15/18
Income from product tests – not a monetary payment
Principle (Editor):
1. Income from product tests by manufacturers does not constitute monetary income. To receive a refund of the purchase price after a product test, prior payment of the purchase price is necessary, and therefore this amount must be deducted from income in accordance with Section 11b Paragraph 1 No. 5 of the German Social Code, Book II (SGB II). The plaintiff has therefore not received any monetary income.
Principle (Juris))
Short-term speculative profits from share transactions made within a benefit period are to be assessed as income under social security law.
Revenue from product tests where the participant receives a refund of the previously paid purchase price is not considered monetary revenue. However, it can be considered revenue in kind because the purchased product is effectively provided free of charge.
An appeal was lodged against this decision: B 4 AS 48/20 R.
Source: socialcourtsability.de
2.2 – Hessian State Social Court, Judgment of 26 October 2020 – L 9 AS 573/19 – Appeal allowed;
Basic income support for job seekers – Additional needs due to decentralized hot water generation – Hot water allowance – Deviating needs – Calculation – Constitutionality of the provision in Section 21 Paragraph 7 of the German Social Code, Book II (SGB II)
Principle (Editor)
1. The Senate has no doubts about the constitutionality of the regulation in Section 21 Paragraph 7 of the German Social Code, Book II (SGB II).
2. Regarding the determination of an additional hot water requirement exceeding the hot water flat rate, this is affirmed.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Magdeburg, Judgment of 09.10.2020 – S 27 AS 2683/19
Principle (Juris)
1. The analytical spatial category of "intermediate area" is a suitable basis for deriving a homogeneous living and residential area. By mapping areas of interconnection around a medium-sized center defined in the state development plan, areas are grouped together based on local conditions, within which sufficient public services for the residents are ensured through proximity to metropolitan areas and infrastructural, especially transport, connections.
2. Applying the principle of comprehensible review arising from objective limits of knowledge, in the sense of procedural review, the procedure chosen by the defendant social security provider proves to be a professionally justifiable method, by means of which it ultimately arrived at a plausible assessment of adequacy values. Within the scope of its methodological freedom, the defendant social security provider was able to choose a concept for the empirical derivation of adequacy values that is based on a frequency-oriented approach, in the sense of quantifying supply and demand and setting the adequacy limit at the point where adequate housing provision for the affected individuals is ensured.
Source: socialcourtsability.de
3.2 – SG Leipzig, judgment of December 13, 2019 – S 16 AS 2257/18
Unemployment benefit II – Accommodation and heating – Single-person household in the Leipzig region of Saxony – Adequacy assessment – Requirements for data collection and evaluation when creating a coherent concept by the basic income support provider – here, inconsistency of the concept
The city of Leipzig's concept for determining reasonable housing costs does not meet the requirements of the Federal Social Court (BSG)
The Leipzig Social Court ruled on December 13, 2019 (case number: S 16 AS 2257/18) that the concept of the City of Leipzig for determining reasonable housing costs, applicable from April 1, 2018, does not meet the requirements of the Federal Social Court (see, e.g., judgment of January 30, 2019, case number: B 14 AS 41/18 R).
Continued with RA Raik Höfler
3.3 – Social Court Leipzig, decision of November 4, 2020 (S 21 AS 1820/20 ER):
Guiding principle by Dr. Manfred Hammel:
On the obligation of the job center to cover the costs for the purchase of an internet-enabled PC including accessories in the amount of EUR 300,- according to § 21 para. 6 SGB II, if this equipment is to be considered "undoubtedly necessary" for a needy primary school student so that he can participate in essential parts of the lessons, especially in the event of a school closure.
If a schoolchild is deprived of this opportunity, the guarantee of a minimum standard of living is jeopardized.
This also constitutes an ongoing need within the meaning of Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), since the required equipment (desktop PC, printer, headset, PC speakers) must be purchased for continuous use, which is unavoidable and cannot be covered in any other way, i.e. neither by equipment provided on loan by the school nor by donations from the school's support association.
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Schleswig-Holstein, decision of 10 January 2020 (L 9 SO 150/19 B ER):
Guiding principle of Dr. Manfred Hammel:
On the necessity of high-frequency support for a hearing- and speech-impaired kindergarten child in the form of kindergarten assistance, provided by interpreters qualified in German Sign Language within the framework of 1:1 support for the duration of the child's stay in this daycare center, up to a maximum of 30 hours per week, as a special therapeutic educational service pursuant to Section 90 Paragraph 1 of the German Social Code, Book IX (SGB IX) in conjunction with Section 99 of the German Social Code, Book IX (SGB IX) and Section 113 Paragraph 2 No. 3 of the German Social Code, Book IX (SGB IX), because if this integration assistance is not provided, the possibility of learning a language at all is made extremely difficult, if not impossible.
Only with such a service can the global (language) developmental disorder complained of by this disabled child be effectively addressed.
In such a pronounced case, learning German Sign Language as a fully-fledged communication system is urgently and promptly necessary.
4.2 – Freiburg Social Court, decision of January 16, 2020 (S 9 SO 4798/19 ER):
Guiding principle by Dr. Manfred Hammel:
On the assumption of costs for a sign language interpreter in the subjects of biology, chemistry and physics for a 17-year-old hearing-impaired student in the 10th grade of a grammar school at a state-run educational and counseling center with boarding facilities (specializing in hearing impairment) as a special educational service for participation in education in accordance with Sections 90 et seq., 99 and 112 Paragraph 1 Sentence 1 No. 1 / Sentence 3 of the German Social Code, Book IX (SGB IX).
This assistance does not concern the determination of content or the delivery of the learning and teaching content of the educational center, nor the evaluation of school performance.
These are integrative assistance services of a supportive nature, which are intended to enable a hearing-impaired high school student to fully perceive the educational offerings of this high school and thus to attend school as such.
The principle of the subsidiary nature of integration assistance (§ 91 para. 1 SGB IX) does not apply if this special need is neither covered by the education center nor can the hearing-impaired applicant easily obtain coverage of this need through this school.
4.3 – LSG Hessen, decision of 29 January 2020 (L 4 SO 210/19 B ER):
Principle by Dr. Manfred Hammel:
On the obligation of the responsible social welfare agency to cover the costs of a sign language interpreter during the school lessons of a 12-year-old hearing-impaired high school student with regard to the subjects of history and music as a benefit for participation in education pursuant to Sections 90 et seq. of the German Social Code, Book IX (SGB IX) in conjunction with Section 99 of the German Social Code, Book IX (SGB IX) and Section 112 Paragraph 1 Sentence 1 No. 1 / Sentence 3 of the German Social Code, Book IX (SGB IX) as a measure necessary for further school attendance.
This is especially true considering the fact that this disabled student's hearing is deteriorating significantly, as well as the overall circumstances that can be observed within the class.
The ability to understand lesson content through sign language enables this student to switch off her hearing aids at certain times and avoid being exposed to the noise of her class.
5. Decisions on asylum law and asylum seekers' benefits
5.1 – LSG Schleswig-Holstein, decision of 15 July 2020 (L 9 AY 79/20 B ER):
Guiding principle Dr. Manfred Hammel:
An abuse of rights within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) requires dishonest conduct disapproved of by the legal system, knowledge and intent regarding the fulfillment of the requirements for the granting of analogous benefits according to Section 2 Paragraph 1 Sentence 1 of the AsylbLG.
The mere failure to leave the federal territory, even for those entitled to benefits under Section 1a Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG) who are tolerated under Section 60a of the Residence Act (AufenthG) and possess neither a substantive right of residence nor a formal legal status in the federal territory, does not constitute an abuse of rights under Section 2 Paragraph 1 Sentence 1 of the AsylbLG. This applies particularly when, due to the lack of enforceability of deportation, there is no basis for assuming a violation of an obligation under residence and asylum seeker benefits law.
The special residence status of tolerated stay can only be considered an abuse of rights in this sense if the non-German person is responsible for the reasons for this, in particular if they have exerted targeted influence on the decisive event.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – BVerwG of November 17, 2020 – 1 C 8.19
International family protection in Germany also applies to refugees with refugee status in another EU member state
The Federal Administrative Court has ruled that the granting of international protection in another member state of the European Union does not prevent the granting of international family protection in Germany.
Continue reading on Juris: www.juris.de
6.2 – Federal Social Court, judgment of July 7, 2020 (B 12 KR 21/18.R):
Guiding principle Dr. Manfred Hammel:
If, for a period of one month, there is neither an administrative act granting benefits under Sections 41 et seq. of the German Social Code, Book XII (SGB XII) nor any actual receipt of benefits, this does not preclude recognition of the status as a "recipient of ongoing benefits" pursuant to Section 5 Paragraph 8a Sentence 2 of the German Social Code, Book V (SGB V), and thus the denial of compulsory health insurance pursuant to Section 5 Paragraph 1 No. 13 of the German Social Code, Book V (SGB V), if the social welfare agency has merely "provisionally suspended" the granting of supplementary assistance and has not made a final decision denying benefits.
There was also an objective reason for this omission, namely the provision of evidence regarding the applicant's financial circumstances (§ 90 SGB XII).
A preliminary administrative act lacks the binding nature typical of a ruling within the meaning of Section 31 Sentence 1 of the German Social Code, Book X (SGB X). This ruling only becomes moot upon issuance of the final administrative decision in this matter.
If the social welfare provider fails to issue a final ruling on the granting of benefits, this does not create a binding legal effect and thus does not bind the statutory health insurance provider to a decision made by the basic income support provider.
In such circumstances, no "fallback compulsory insurance" comes into effect according to § 5 para. 1 no. 13 SGB V.
Section 5 paragraph 8a sentence 2 of the German Social Code, Book V (SGB V) specifies the regulation regarding the priority of the social welfare provider for the provision of health-related assistance in accordance with Sections 47 et seq. of the German Social Code, Book XII (SGB XII).
Finally, Section 5 Paragraph 8a Sentence 3 of the German Social Code, Book V (SGB V) clarifies that this priority rule is not circumvented by merely short-term interruptions, and does not, contrary to the priority-subordination relationship between the social assistance and health insurance providers, open up the fallback insurance provision of Section 5 Paragraph 1 No. 13 SGB V, even though the applicant has a basic entitlement to benefits within the meaning of Section 5 Paragraph 8a Sentence 2 SGB V.
6.3 – Joint working aid: Working aid for advising EU citizens
More information: infothek.paritaet.org
6.4 – Rent caps: City of Neumünster without a “coherent concept”, an article by attorney Helge Hildebrandt,
further information at: sozialberatung-kiel.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
