1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, judgment of September 3, 2020 – B 14 AS 40/19 R
Courts are not allowed to develop their own coherent concept.
Guiding principle (Editor):
Social courts may not determine reasonable housing costs based on the average values of a simple rent index.
Source: socialcourtsability.de
Attorney Kay Füßlein from Berlin also contributed with the following guiding principle:
- "Courts are not allowed to develop their own coherent concept."
- The assumption that BSG approved the concept published in Archiv für Wissenschaft und Praxis der sozialen Arbeit Nr. 1/2010 p. 28 – 42; is incorrect.
- It is necessary to verify whether there are actually apartments available on the market that meet the affordability limit derived from the rent index.
Note:
Guiding principle Dr. Manfred Hammel
BSG, judgment of September 3, 2020 (B14 AS 40/19 R):
Both the assessment of the appropriateness of the accommodation costs and the assessment of the appropriateness of the heating costs pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) must, in principle, be carried out separately, without prejudice to the economic efficiency assessments to be carried out by the Jobcenter in the case of cost reduction requests (Section 22 Paragraph 1 Sentences 3 and 4 SGB II) and the consideration of an overall appropriateness limit existing pursuant to Section 22 Paragraph 10 Sentence 1 SGB II.
Within the framework of assessing the appropriateness of needs in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the sum formed from the basic rent and operating costs can only represent an acceptable level of appropriateness if a significant number of suitable living spaces (for a four-person household in the state of Berlin with 90 square meters of living space) are actually offered on the housing market and are thus generally available.
The mere conviction that the potentially acceptable and thus abstractly appropriate basic rent can be determined most fairly by including weighted average rent index values does not in itself result in a general availability of housing.
The deadline according to § 22 para. 1 sentence 3, last half-sentence SGB II begins at the time when the persons entitled to benefits become aware of their obligation to reduce costs.
A job center cannot automatically reduce recognized housing and heating costs after six months. There is no time limit for this. Instead, the specific circumstances of each individual case are always decisive. This could include a request to reduce costs by adjusting heating habits or by moving.
Legal tip:
See also BSG, judgment of 03.09.2020 – B 14 AS 37/19 R
1.2 – BSG, Judgment of 08.12.2020 – B 4 AS 30/20 R
Income consideration – student loan – no increase in the value of income due to repayment obligation
Guiding principle (Editor)
- Installments from student loans are not considered income.
- Job centers are not allowed to count payments from a private loan (in this case, a student loan) as income. The purpose of the loan is irrelevant. Otherwise, even a consumer loan would be pointless.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, Judgment of 27 August 2020 – L 31 AS 1871/19
Regarding the question of whether the credit entry on the tenant's account constitutes a credit entry within the meaning of Section 22 Paragraph 3 of the German Social Code, Book II (SGB II).
Principle (Juris)
- The question of when a credit for ancillary costs has been received is not a legal question, but a factual question to be decided by evaluating the evidence.
- The legal basis for this assessment is clear. In principle, readily available funds are only unavailable to cover needs if they cannot be realized at all or not without further ado for legal reasons (Federal Social Court, judgment of May 16, 2012, B 4 AS 132/11 R).
- If the job center pays the rent directly to the landlord, the assumption of receipt upon crediting the landlord's account appears particularly suitable for implementing the purpose of the provision of Section 22 Paragraph 3 SGB II in practice.
Source: socialcourtsability.de
2.2 – North Rhine-Westphalia State Social Court, decision of 13 November 2020 – L 6 AS 1275/20 B ER – legally binding
Social security benefits (SGB II); exclusion of EU citizens from benefits; preliminary legal protection; violation of the principle of equal treatment
Guiding principle (Editor)
- Entitlement of the school-age child of an EU foreigner and his or her parents with custody to basic income support benefits.
- The exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 c of the German Social Code, Book II (SGB II) violates the principle of equal treatment as set out in Article 4 of Regulation (EC) No 883/2004. This provision stipulates that persons to whom the Regulation applies, and unless otherwise provided in that Regulation, have the same rights and obligations under the laws of a Member State as the nationals of that State. Due to the principle of primacy of application, the violation of the prohibition of discrimination in Article 4 of Regulation (EC) No 883/2004 renders the discriminatory characteristic of national law inapplicable when applying the other requirements for entitlement to benefits (Higher Social Court of North Rhine-Westphalia, decision of November 10, 2017, L 6 AS 1256/17 B ER, citing the case law of the European Court of Justice).
- For the parent with custody who exercises actual care, Article 10 of Regulation (EU) 492/2011 grants a derived right of residence, since the minor children could not exercise their right of residence without the parents with custody (Federal Social Court, judgment of 03.12.2015, B 4 AS 43/15 R, referring to ECJ, judgment of 08.05.2013, C-529/11 and judgment of 13.06.2013, C-45/12).
Source: socialcourtsability.de
2.3 – North Rhine-Westphalia State Social Court, Judgment of 29 October 2020 – L 7 AS 2052/18
To deny a necessary relocation – capping of accommodation costs § 22 para. 1 sentence 2 SGB II
Guiding principle (Editor):
Noise and pollution in the hallway caused by a construction site are not, without additional circumstances not apparent here, such as particular intensity, long duration and the futile attempt to remedy the situation, a valid reason for moving.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Dortmund, decision of 12 November 2020 – S 30 S 4219/20 ER
Costs for a commercially organized move – pandemic – referral from the job center contradicts the purpose of the Corona regulation
SG Dortmund: Job centers must cover the costs of a commercially organized move during the Corona pandemic.
Guiding principle (Editor)
- In special cases such as illness, disability, or other special circumstances, the assumption of costs for a professionally organized move may be considered (see LSG Saxony-Anhalt of 27 November 2012 – L 5 AS 902/12 B ER; SG Dresden of 6 June 2006 – S 23 AS 838/06 ER). This is the case here.
- Carrying out a necessary move with student helpers, a moving van driver and an electrician is unreasonable in the current situation due to the COVID-19 pandemic.
Sources: sozialgerichtsbarkeit.de and here: sozialgerichtsbarkeit.de
3.2 – Hildesheim Social Court, decision of December 2, 2020 (S 58 AS 4177/20 ER):
Guiding principle Dr. Manfred Hammel:
The sanction regulations according to §§ 31 ff. SGB II do not supersede the cooperation regulations according to §§ 60 ff. SGB I as special regulations in accordance with § 37 SGB I.
A job center can also require employable benefit recipients to appear in person in accordance with Section 61 of the German Social Code, Book I (SGB I), and, in accordance with Section 66 of the SGB I, may refuse or withdraw (continued) benefits as a consequence of a lack of cooperation.
The application of Sections 61 and 66 of the German Social Code, Book I (SGB I) does not, in principle, preclude a sanction under Section 32 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) amounting to ten percent of the standard benefit for a period of three months.
However, three failures to report to an employable person entitled to benefits do not always constitute grounds for legitimately questioning the need for assistance (§ 7 para. 1 sentence 1 no. 3 SGB II in conjunction with § 9 para. 1 SGB II) of a benefit recipient and thus the prerequisites for receiving unemployment benefit II (§ 66 para. 1 sentence 1 SGB I).
There is no such close connection between this behavior and the basic requirements for receiving subsistence benefits under the German Social Code, Book II (SGB II).
The requirement of need for assistance according to § 9 para. 1 SGB II is less closely related to the attendance of appointments (§ 59 SGB II in conjunction with § 309 SGB III) than can be determined in the case of availability according to § 138 para. 5 SGB III.
When announcing appointments for reporting in accordance with Section 59 of the German Social Code, Book II (SGB II), the job center must always provide a valid reason.
Due to the current COVID-19 pandemic and the applicant's membership in a recognized risk group, there is a valid reason for the applicant to be absent from a scheduled appointment in accordance with Section 32 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II).
Before imposing a sanction under Section 32 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the person concerned must be heard regarding the intended reduction or withdrawal of benefits in accordance with Section 24 Paragraph 1 of the German Social Code, Book X (SGB X). Failure to conduct such a hearing renders any sanction imposed by the job center unlawful.
3.3 – Osnabrück Social Court, Judgment of 28 July 2020 – S 16 AS 508/17 – legally binding
No efforts whatsoever have been made to realize the value of the co-ownership share
Guidance (Editor)
- If, after receiving benefits as a grant, the recipient does not take further reasonable steps to remove an obstacle to their use, the possible legal consequence of continued uneconomical behavior, after appropriate instruction by the basic income support provider, is a reduction of unemployment benefit II according to the sanction regulations (Federal Social Court, judgment of January 27, 2009 – B 14 AS 42/07 R). In the present situation, a denial of benefits is also possible outside the scope of the sanction regulations.
- An actual impediment to realization cannot be assumed if the person in need of assistance is not interested in dissolving the co-ownership and therefore does not seriously assert a corresponding claim. Such a situation, which might be based on a hoped-for increase in the property's value or on familial considerations, does not render the claim unenforceable (LSG Baden-Württemberg, Judgment of January 24, 2012 – L 13 AS 3113/09).
- The court agrees with this view, at least in the present case where the co-ownership is concealed from the benefit provider. In this case, the provider cannot demand cooperation or impose sanctions. The negative behavior of concealment cannot lead to a more favorable position for the benefit recipient compared to those who disclose their ownership in accordance with the regulations.
Source: socialcourtsability.de
Note: Legal principle (Juris)
- A co-ownership share in a property is not per se unusable due to the possibility of dissolving the co-ownership under Section 749 of the German Civil Code (BGB) (distinguishing this from: Higher Social Court of Saxony-Anhalt, judgment of September 20, 2017 – L 4 AS 138/12, para. 35). It must be examined whether the other party can successfully assert the objection of abuse of rights under Section 242 of the German Civil Code (BGB) (see: Federal Court of Justice, judgment of January 31, 1972 – II ZR 86/69).
- The value of such a co-ownership share is not half of the market value (as indicated in: Federal Social Court, Judgment of January 27, 2009 – B 14 AS 42/07 R, para. 42). Due to the restrictions arising from the co-ownership, a deduction must be made based on the circumstances of the individual case. The extent and the expected duration of the restrictions must be taken into account.
- The "foreseeable period" in which an asset must be realizable in order to be considered as an asset under Section 12 Paragraph 1 of the German Social Code, Book II (see: Federal Social Court, Judgment of January 27, 2009, B 14 AS 42/07 R, paragraphs 20 et seq.) does not begin anew with each benefit period if the benefit recipient has concealed the asset.
3.4 – Social Court Karlsruhe, Judgment of 17.08.2020 – S 5 AS 1414/20
Unemployment benefit II; need for accommodation and heating; rent reduction; revocation of the benefit award; significant change; breach of the notification obligation; gross negligence
Guiding principle (Editor)
- Those receiving assistance under the German Social Code, Book II (SGB II), must immediately inform the job center of any rent reduction they have made.
- Overpaid benefits must be repaid.
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Karlsruhe, Judgment of 10 November 2020 – S 12 SO 3530/17
Regarding the question of whether benefits under the German Social Code, Book XII (SGB XII) are to be provided for contributions to the old-age security of a caregiver.
Principle (Juris):
The preferential treatment of caregivers of recipients of benefits under the social long-term care insurance scheme compared to caregivers of recipients of subsidiary benefits for care under the German Social Code, Book XII (SGB XII), who are not members of this scheme, is justified with regard to the bearing of contributions to the old-age security of the caregivers because of the contribution payments of the legally insured persons that establish insurance coverage.
Source: socialcourtsability.de
5. Decisions on asylum law and asylum seekers' benefits
5.1 – Osnabrück Social Court, decision of 07.11.2019 – S 44 AY 59/19 ER – legally binding
Granting of benefits under Section 3 AsylbLG without reduction under Section 1a AsylbLG.
Source: socialcourtsability.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Brochure: “Family benefits for people without German citizenship” – GERMAN PARITY WELFARE ASSOCIATION, GERMAN ASSOCIATION.
More information: www.der-paritaetische.de
6.2 – Covid-19 and skilled worker immigration
On November 24, 2020, the Federal Ministry of the Interior sent another letter to the federal states with information related to the Covid-19 pandemic and skilled worker immigration.
The most important points of the writing:
1. Expansion of entry options, among other things, to
- Specialty chefs (§19c para. i AufenthG in conjunction with §11 para. 2 BeschV)
- Internships as part of seasonal work in agriculture (whatever these "internships" are supposed to be)
- Student exchange
- Au pairs – volunteers
- Trainees in the context of further training (§16a AufenthG)
- Stays for language courses
Visits by third-country nationals to their unmarried German partners are now possible again, provided it can be proven that the two have already met. The meeting does not necessarily have to have taken place in Germany.
More information: www.ggua.de
6.3 – Press release from the RAV: Every deportation to Syria violates human rights
Deportations to a torture state and cooperation with the Assad regime are unacceptable
The RAV (Refugee Association) is calling for an extension of the deportation moratorium to Syria on the occasion of this week's conference of interior ministers. Deportations to a torture state are unacceptable; Syria is not safe for anyone.
Continued with attorney Sven Adam
6.4 – “Mandatory choice” between basic income support and housing benefit, or: Exemption from the broadcasting fee according to § 4 para. 6 sentence 2 RBStV! An article by attorney Helge Hildebrandt, Kiel
My Berlin colleague, lawyer Kay Füßlein, points out an interesting problem under the heading "Compulsory choice between basic income support and housing benefit or: Must impoverished pensioners become even poorer?":
If recipients of basic income support under the German Social Code, Book XII (SGB XII) (especially basic income support for the elderly and those with reduced earning capacity) are referred to housing benefit, which many SGB XII basic income support providers consider preferable because it is slightly higher than basic income support payments, it can happen that those affected are ultimately worse off with housing benefit than with basic income support payments, specifically if the housing benefit is less than €17.50 more than the basic income support payments would be. The reason:
Unlike recipients of basic income support under the German Social Code Book XII (SGB XII), those receiving housing benefit cannot be exempted from the broadcasting fee pursuant to Section 4 Paragraph 1 of the Broadcasting Fees Act (RBStV), which currently amounts to €17.50.
My colleague in Berlin is pursuing a solution to this obvious problem of justice – the housing benefit recipient has less than the basic income support recipient due to the obligation to pay the broadcasting fee, or, in other words: the housing benefit recipient's subsistence level is no longer guaranteed – by fighting in court for basic income support benefits for his client and – correctly – pointing out that housing benefit is not a social benefit that must be applied for as a priority under the German Social Code, Book XII (SGB XII).
However, there is another solution to this problem. It can be found in the Interstate Broadcasting Treaty (RBStV), specifically in Section 4, Paragraph 6, Sentences 1 and 2 of the RBStV:
Continue here: sozialberatung-kiel.de
Note:
SG Berlin, judgment of 28 October 2018 – S 70 SO 21/18 – pending before the Federal Social Court (BSG) – B 8 SO 2/20 R
Guidance (Editor)
- The legal question of whether the mere existence of an entitlement to housing benefit under the Housing Benefit Act (WoGG) leads to an exclusion from benefits under the Social Code, Book XII (SGB XII) due to the principle of subsidiarity in Section 2 Paragraph 1 SGB XII is answered in the negative here.
- However, an exclusion from benefits based solely on Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII), based on the mere existence of an entitlement to housing benefit under the Housing Benefit Act (WoGG), without the beneficiary actually receiving "readily available funds" from this, is incompatible with the systematic structure of the law (see also, in effect: Berlin-Brandenburg Higher Social Court, decision of February 7, 2017 – L 15 SO 252/16 B PKH (unpublished); Berlin-Brandenburg Higher Social Court, decision of April 20, 2018 – L 15 SO 213/17 B PKH; according to which there should even be a "right of choice" between claiming housing benefit or claiming basic income support for the elderly and those with reduced earning capacity; presumably also: Berlin-Brandenburg Higher Social Court, judgment of October 25, 2018 – L 23 SO 208/17).
6.5 – Defense options against a sanction for missing an appointment at the job center,
An article by attorney Dr. Robin von Eltz:
- Sanction for missing an appointment at the job center:
Job centers regularly invite recipients of benefits under the German Social Code, Book II (SGB II, also known as "Hartz IV"), to appointments to discuss their employment situation or similar matters. These appointments are mandatory for benefit recipients. If they fail to appear, they face a sanction, which involves withholding 10% of their standard benefit rate for three months.
However, it is often the case that the sanction should not have been imposed at all because the benefit recipient did not receive the appointment invitation, there was a valid reason for the absence, or the information about the legal consequences in the invitation letter was incorrect.
- not received the invitation to the
appointment from the job center, the job center may not impose a sanction for missing the appointment. If a sanction is imposed nonetheless, an objection should be filed, arguing that no invitation letter was received.
It is important to note that in such a case, the job center must prove that the invitation reached the benefit recipient (established case law, see most recently the ruling of the Higher Social Court of Saxony, judgment of May 28, 2020 – L 3 AS 64/18). Because invitation letters are usually sent via regular mail and not with proof of delivery (e.g., registered mail), the job center is often unable to prove receipt of the invitation.
- There is a valid reason for the absence.
If the benefit recipient can demonstrate a valid reason for missing the appointment, no sanction may be imposed. What constitutes a valid reason cannot be stated generally, but depends on the individual case.
With regard to the current coronavirus pandemic, the Hildesheim Social Court ruled in its decision of December 2, 2020 – S 58 AS 4177/20 ER – that a valid reason exists if the benefit recipient belongs to a high-risk group for COVID-19 and did not attend the appointment because they feared infection.
- In case of illness, a "certificate of being bedridden" is required.
If the job center has imposed a sanction for a missed appointment, it is worth carefully checking the information about the legal consequences on the invitation letter. If this information is incorrect, the sanction is unlawful.
Continue to point 5 here: www.anwalt.de
6.6 – PM: Jobcenter Werra-Meißner loses again before the Kassel Social Court regarding housing costs in subsistence benefits
The housing market survey report from 2014, even after "improvements," does not comply with the requirements of the Federal Social Court
An article by attorney Sven Adam
Continue at: anwaltskanzlei-adam.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
