1. Decisions of the Federal Constitutional Court on basic income support
1.1 – Federal Constitutional Court, decision of 12 February 2020 (1 BvR 1246/19):
Guiding principle by Dr. Manfred Hammel:
The legal question of whether the exclusion of a destitute Greek national living in Germany from benefits under Sections 41 et seq. of the German Social Code, Book XII (SGB XII) pursuant to Section 23 Paragraph 3 Sentence 1 No. 2 of the SGB XII can be considered constitutional is currently difficult and unresolved, and has not yet been clarified by the highest court.
Both the view that such an exclusion of benefits for Union citizens who are neither employed nor required to leave the country would be constitutional, and the opposing view, which argues that such an exclusion of benefits is incompatible with the fundamental right to a dignified minimum standard of living (Article 1, Paragraph 1 of the Basic Law), are based on objective grounds.
The denial of legal aid for expedited social court proceedings in this social welfare matter must therefore be considered incompatible with Article 3 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 3 of the Basic Law and unconstitutional.
1.2 – Federal Constitutional Court, decision of 8 July 2020 (1 BvR 1094/20):
The question
of whether Section 11 Paragraph 1 Sentence 11 of the Freedom of Movement Act/EU in conjunction with Section 28 Paragraph 1 Sentence 1 No. 3 of the Residence Act (by analogy) and Article 18 Paragraph 1 of the "Treaty on the Functioning of the European Union (TFEU)," which prohibits any discrimination on grounds of nationality, can grant the parent with custody of a minor Union citizen entitled to freedom of movement under Section 3 Paragraph 1 Sentence 1 of the Freedom of Movement Act/EU due to accompanying the other parent an independent right of residence, so that the exclusion rule arising from Section 7 Paragraph 1 Sentence 2 No. 2a) of the German Social Code, Book II (SGB II) does not apply, is controversial, difficult and unresolved.
The mere reference to the possibility of the partner with the right of residence caring for the children is not sufficient for an exclusion of benefits, especially considering Article 6 of the Basic Law in conjunction with Article 8 of the European Convention on Human Rights.
2. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II)
2.1 – Federal Social Court, Judgment of 17 September 2020 – B 4 AS 3/20 R
Basic income support for job seekers – consideration and calculation of income – participation of a disabled beneficiary in a project of a non-profit welfare organization to improve social participation with regular monthly payment of motivational allowances
Guiding principle (Editor):
Income from a long-term supplementary income project also leads, within the framework of Section 11a Paragraph 4 of the German Social Code, Book II (SGB II), to the treatment of the income according to the principles applicable to earned income. The employment allowance and the employment tax-free allowance also apply to motivational payments.
Guidance (Editor):
For the present case of payments in the form of regular monthly cash benefits from a supplementary income project to an employable person entitled to benefits under Book II of the German Social Code (SGB II), which are provided over a longer period, their consideration is justified in accordance with the regulations applicable to income from employment, i.e., the employment allowance and the employment exemption should be excluded from the calculation.
These income exemptions serve similar purposes to the existing incentive payments. The employment-centered nature of the German Social Code, Book II (SGB II), and its standardized system – in contrast to the German Social Code, Book XII (SGB XII) – mean that employable recipients of unemployment benefit II (Alg II) in supplementary income projects are not, in terms of the amounts remaining to them in addition to their SGB II benefits, in a significantly better economic position indefinitely than those receiving supplementary benefits.
Source: socialcourtsability.de
Note: For information on the German Social Code, Book X II (SGB X II), see: sozialberatung-kiel.de
Legal tip:
See also: Guiding principle Dr. Manfred Hammel
Federal Social Court (BSG), Judgment of September 17, 2020 (B 4 AS 3/20.R):
The "motivational allowance" of EUR 5 per hour of attendance granted to a recipient of unemployment benefit II (degree of disability: 20) suffering from addiction by a denominational non-profit welfare organization within the framework of an employment project, is to be excluded from consideration as income pursuant to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), when classified as "allowances" within the meaning of Section 11a Paragraph 4 SGB II, taking into account the employment allowance of EUR 100 per month pursuant to Section 11b Paragraph 2 Sentence 1 SGB II and the further employment allowance pursuant to Section 11b Paragraph 3 SGB II.
The justification assessment to be carried out by the job center in accordance with Section 11a Paragraph 4 of the German Social Code, Book II (SGB II), and in compliance with the principle of subsidiarity, also has a limiting effect here. The job center may also take into account the type, value, scope, and frequency of these benefits.
The situation here is comparable to that of "supplementary earners" under the German Social Code, Book II (SGB II). The rationale behind the flat-rate employment allowances according to Section 11b, Paragraph 2, Sentence 1 / Paragraph 3 of the SGB II is also to strengthen the willingness to work and to help oneself.
Therefore, taking into account received benefits pursuant to Section 11a Paragraph 4 of the German Social Code, Book II (SGB II), in accordance with the earned income allowance pursuant to Section 11b Paragraph 2 Sentence 1 / Paragraph 3 of the German Social Code, Book II (SGB II), is justified.
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – North Rhine-Westphalia State Social Court, decision of 12 November 2020 – L 21 AS 753/20 B ER – legally binding
Basic income support for job seekers – household unit – spouse not permanently separated – abandonment of the shared household – intention to separate – not applicable if remaining in the marital home
Guiding principle (Editor):
Spouses are only permanently separated in the shared marital home if, in addition to abandoning the domestic partnership, at least one of them expresses an outwardly recognizable intention to separate.
Guidance (Editor)
- To assess whether spouses are permanently separated, the principles of family law regarding the opposite concept of separation must be applied. In addition to physical separation, separation requires an intention to separate. This necessitates an outwardly recognizable intention of at least one spouse to permanently dissolve the marriage – in the individually chosen form. Separation can, in principle, also be carried out in the marital home (see Section 1567 Paragraph 1 Sentence 2 of the German Civil Code – BGB). However, if the spouses continue to live there together – as is the case with the applicant and witness C – a more thorough examination is required to determine whether the spouses are indeed living separately.
- In any case, a separation of essential economic ties and the outwardly recognizable intention of at least one spouse to no longer live together with the other spouse are required. Separate sleeping and eating arrangements are generally insufficient if the spouses continue to live in the marital home after the alleged separation. For the application of Section 7 Paragraph 3a) of the German Social Code, Book II (SGB II), in addition to the absence or abandonment of the shared household, it is essential that at least one partner intends to dissolve the marriage.
- It is not the separation itself, but rather the outwardly recognizable intention to separate that is lacking if the spouses, after having ceased to live together as a couple, remain permanently in the marital home without at least one of them demonstrably seeking a divorce (Lower Saxony-Bremen State Social Court, judgment of 21.02.2013 – L 15 AS 139/09).
Source: socialcourtsability.de
3.2 – Berlin-Brandenburg State Social Court, Judgment of 06.10.2020 – L 31 AS 962/18
Inherited property – inheritance – received account credit also constitutes income “in money” according to the version of § 11 SGB II applicable from 1 August 2016.
Guidance (Editor)
- Contrary to the plaintiff's view, the crediting of the proceeds from the sale of the inherited property to her account does not constitute income "in monetary value" within the meaning of Section 11 of the German Social Code, Book II (SGB II), but rather income in cash amounting to EUR 10,000.
- Income "in monetary value" refers only to income that does not consist directly of cash or bank money, but has an economic value that can be measured in monetary terms and is therefore exchangeable for money (Hengelhaupt in: Hauck/Noftz, SGB, 12/19, § 11 SGB II Rn. 160). This includes, in particular, accruing claims and rights, as well as income in kind (cf. regarding a donation of a motor vehicle during the receipt of benefits: Meißner in GK-SGB II, § 11 Rn. 41.2, as of V/2018; LSG Saxony-Anhalt 26. 8. 2015 – L 4 AS 83/14 Rn 30 ff.) including vouchers, credit systems used as "currency" in barter networks, services or benefits in kind, in particular free accommodation or meals, allowances, and employee discounts. Within the framework of Section 11 Paragraph 1 Sentence 2, it will generally be about provided catering and the possibility of using company facilities.
Source: socialcourtsability.de
3.3 – Schleswig-Holstein State Social Court, Judgment of 23 October 2020 – L 3 AS 95/16
Guiding principle (Editor):
The inclusion of shared rooms in the determination of accommodation costs for single-person households therefore does not meet the requirements of the jurisprudence for a coherent concept.
Guidance (Editor)
- The Senate does not share the view that the specific refusal of a room in a shared apartment is generally reasonable for those under 25. There is no legal basis for this (cf. LSG Saxony, judgment of December 19, 2013, L 7 AS 637/12, confirmed by BSG, judgment of November 18, 2014, – B 4 AS 9/14 R).
- The Job Center was not authorized to include shared apartment rooms in its evaluation of rental offers for a single-person household within its established concept for determining the appropriate rent ceiling. Therefore, the concept is not sound.
Source: socialcourtsability.de
Legal tip:
See also Schleswig-Holstein State Social Court, judgment of 23 October 2020 – L 3 AS 116/17
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Hamburg Social Court, Judgment of 24 September 2020 – S 58 AS 369/17
Regarding the requirements for a correct and complete notification of legal consequences from the judgment of the Federal Constitutional Court of 05.11.2019 – 1 BvL 7/16
Guiding principle (Editor):
In the case of a sanction pursuant to Section 31 of the German Social Code, Book II (SGB II), hardship and good conduct must be examined in accordance with the requirements of the Federal Constitutional Court (BVerfG) in its judgment of November 5, 2019, 1 BvL 7/16, if the sanction period expired before November 5, 2019 (contra: Social Court Munich, judgment of January 31, 2020 – S 46 AS 536/18).
Guidance (Editor):
The constitutional requirements for a correct and complete notification of legal consequences arising from Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law must be taken into account when examining the legality of non-final decisions on benefit reductions pursuant to Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), which were issued before the announcement of the Federal Constitutional Court's decision of November 5, 2019 (Geckeler in: Adolph, SGB II, SGB XII, AsylbLG, 66th edition August 2020, III. Questions of Legal Protection, para. 38; contra, for example, Social Court Munich, judgment of January 31, 2020 – S 46 AS 536/18 –), because the continued validity orders pursuant to No. 2 of the operative part of the decision do not have a retroactive legalizing effect. Therefore, such a decision is only lawful if the prior instruction on the legal consequences pursuant to Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) complied with the requirements of Nos. 2a and 2c of the operative part of the decision.
Principle (Juris)
- The requirements for a correct and complete notification of legal consequences arising from the judgment of the Federal Constitutional Court of 05 November 2019 – 1 BvL 7/16 – must be taken into account when examining the legality of non-final decisions on benefit reductions pursuant to Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), which were determined before its promulgation, because the continued validity orders pursuant to No. 2 of the operative part of the decision do not have a retroactive legalizing effect.
- Therefore, such a decision is only lawful if the prior instruction on the legal consequences pursuant to Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) complied with the requirements of Nos. 2a and 2c of the operative part of the decision.
4.2 – Chemnitz Social Court, decision of 12 November 2020 – S 10 AS 983/20 ER
Equipment including a computer and printer – additional needs – unavoidable ongoing special needs – assumption of costs for the purchase of a computer and printer according to binding school regulations – constitutionally compliant interpretation. Corona-related homeschooling: Job Center must cover the purchase costs for a laptop and printer.
Guiding principle (Editor)
- Insofar as the acquisition of learning materials required for instruction has to be made from private funds, the need is to be met – in a constitutionally compliant interpretation of the law – by applying Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) (similarly, Social Court Halle, judgment of 25.08.2020, file number: S 5 AS 2203/18).
- Insofar as school education develops further with a use of notebooks that is binding or mandatory for the pupils or their parents in individual cases – i.e., as stipulated by the general conference (§§ 27, 28 SchulG LSA – juris: SchulG ST 2018) – these notebooks or tablets, with appropriate technical equipment, ultimately prove to be comparable to textbooks and thus a necessary learning tool with regard to the educational purpose pursued.
Source: socialcourtsability.de
4.3 – SG Berlin, judgment of November 20, 2020 – S 37 AS 11335/19
Principle (Juris)
- When reviewing a sanction based on a violation of an obligation imposed by an integration administrative act, it must be assessed, irrespective of the legal force of the integration administrative act, whether the person concerned was effectively and lawfully subject to the obligations stipulated in the integration administrative act.
- A non-final sanction imposed before November 5, 2019, pursuant to Section 31 Paragraph 1 of the German Social Code, Book II (SGB II) in conjunction with Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), which covers periods after November 5, 2019, only obligates the (oral) hearing and the notification of a reduction in the period upon declaration of future compliance if there is a real chance of a serious declaration of willingness to cooperate.
- Reductions exceeding 30% due to overlapping sanction periods are not unconstitutional per se; however, any resulting hardship may require adjustments.
Source: socialcourtsability.de
4.4 – SG Hildesheim, decision of 02.12.2020 – S 58 AS 4177/20 ER
Benefit recipients from Covid-19 risk groups do not have to attend in-person appointments
“The complete withdrawal of subsistence benefits to force my client to appear in person has nothing to do with the actions of an authority bound by law,” says lawyer Sven Adam, who represents the Einbeck resident, expressing his frustration with the job center's actions. “It is gratifying that the court has taken such a clear and fundamental stand against this behavior, especially in the current stressful situation for everyone,” Adam concludes.
Further information can be found here at RA Sven Adam
5. Decisions on asylum law and asylum seekers' benefits
5.1 – Hessian State Social Court, Judgment of 22 July 2020 – L 4 AY 8/17
Principle (Juris)
- The considerations of the Federal Social Court in its judgment of October 30, 2013 – B 7 AY 7/12 R – regarding the submission of a so-called declaration of voluntariness also apply to the concretization of the abuse of rights pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). According to this judgment, pursuant to Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 of the Basic Law (GG), no one can be required to submit such a declaration if they do not possess the corresponding will; otherwise, they would be forced to lie.
- If a benefit recipient objects to a benefit award that he considers too low for one month under the Asylum Seekers' Benefits Act (AsylbLG), the decisions regarding monthly benefits for the following months become subject to the ongoing objection procedure in accordance with § 86 SGG analogously.
Source: socialcourtsability.de
5.2 – LSG Mecklenburg-Vorpommern, decision of 13 September 2020 (L 9 AY 9/20 B ER):
Guiding principle Dr. Manfred Hammel:
The use of church asylum by persons entitled to benefits under Section 1 Paragraph 1 No. 4 or 6 of the Asylum Seekers' Benefits Act (AsylbLG) does not interrupt the 18-month waiting period under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
This is not an expression of a deliberate abuse of rights influencing the further stay of these persons in the federal territory within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
If this clientele seeks sanctuary in a church, this does not create either a legal or a factual obstacle to deportation, especially if the regulatory authority is aware of the location and duration of this ("open") church asylum, i.e., there is no deliberate "going underground".
If the public authorities nevertheless refrain from apprehending these persons and enforcing their deportation from the federal territory, then this cannot be blamed on the non-German persons who make use of this form of church asylum.
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
5.3 – Duisburg Social Court, decision of November 2, 2020 – S 48 AY 34/20 ER
Keywords: Section 1a AsylbLG, analogous benefits
Legal provisions: Section 2 AsylbLG | Section 1a AsylbLG
Guidance by Attorney Jan Sürig
- Those entitled to benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) are excluded from the personal scope of application of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
- During the Corona pandemic, obligations to cooperate are suspended and benefit reductions linked to violations of obligations to cooperate are waived.
- The social services office's description of how easy it is to obtain Lebanese identity papers contradicts the information on the Lebanese embassy's website.
5.4 – SG Stade, decision of 20.11.2020 – S 33 AY 7/20 ER
Burden of proof under Section 2 Paragraph 1 Asylum Seekers' Benefits Act
Guidance by Attorney Jan Sürig
1. As long as it does not appear more than possible that the applicant has abused her right to remain, the benefit provider bears the burden of proof for the actual existence of an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
2. Abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act requires intent with regard to the conduct typical for extending residence.
3. Regarding the aliases created in Bulgaria, a variety of scenarios are conceivable as to how they could have arisen. Misconduct on the part of the applicant is not the only possible cause
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Assumption of funeral costs – Social welfare office must hurry
A contribution by lawyer Alexander Kumlehn regarding the decision of the Hanover Social Court of November 11, 2020, file number S 27 SO 372/20 ER
The death of a close relative is always a difficult situation. If one also lacks the financial means to arrange a funeral, the burden is even greater. In these cases, the responsible social welfare agency is obligated under Section 74 of the German Social Code, Book XII (SGB XII), to cover the funeral expenses.
Unfortunately, social services offices typically take a very long time, often several months, to approve such benefits. This naturally makes the situation even more difficult for relatives, as the body or ashes have to be stored for so long. Saying goodbye and finding closure during this time is impossible; in fact, the emotional burden increases even further.
Therefore, the burial laws of the German states, for example in Lower Saxony in § 9 of the Lower Saxony Burial Act, contain a regulation stipulating that bodies should be buried or cremated within 8 days of death. Urns should be buried within one month of cremation.
These deadlines are regularly missed because the social security agencies do not work quickly enough.
In this regard, the Social Court of Hanover, in line with other social courts, recently made an interesting decision that essentially only reiterates the obvious (Social Court of Hanover, decision of November 11, 2020, file number S 27 SO 372/20 ER): The social security provider is of course obliged to confirm the assumption of funeral costs quickly so that the legal regulations concerning funerals can be complied with.
Go to the source
6.2 – Federal Constitutional Court, decision of 15 October 2020 (2 BvR 1786/20):
Principle by Dr. Manfred Hammel:
Temporary suspension of an eviction in proceedings pursuant to Section 32 Paragraph 1 of the Federal Constitutional Court Act for a maximum period of six months if the enforcement of the legally binding eviction judgment could violate the complainant and debtor's fundamental right to life and physical integrity (Article 2 Paragraph 2 Sentence 1 of the Basic Law) because an acute risk of suicide for this person cannot be ruled out during the execution of the eviction.
6.3 – The right of self-employed EU citizens to freedom of movement continues despite losses
Continue here: www.ggua.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
