1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court (BSG) judgment of December 8, 2020 – B 4 AS 46/20 R
Notice of cancellation – Notice of amendment – Notice of objection – One-year period – Power of attorney
Adult son liable for false Hartz IV information provided by father
Guidance (Editor)
1. Anyone who tolerates another person acting as their representative must, according to the principles of apparent authority or implied authority, be held accountable for that person's conduct, even if they had no intention of granting authority.
2. The conditions for the revocation of the benefit awards with retrospective effect are also met insofar as the awards were based on at least grossly negligent false statements by the father of the adult plaintiff.
Source: www.bsg.bund.de
Note:
If a father conceals his adult son's income when applying for Hartz IV benefits, the child must later assume responsibility and repay the overpaid benefits. The Federal Social Court (BSG) ruled in a judgment announced on Wednesday, December 9, 2020 (Case No.: B 4 AS 46/20 R), that the son was justified in tolerating his father acting "as a representative" on his behalf.
More information: www.juraforum.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Hessian State Social Court, Judgment of 09.09.2020 – L 6 AS 126/18 – Appeal pending before the Federal Social Court – B 14 AS 79/20 R
Does the provision of Section 2 Paragraph 3 Sentence 1 Number 2 of the Freedom of Movement Act/EU 2004 regarding a continuing employee status apply to a Union citizen who was employed subject to compulsory insurance for exactly one year, with the consequence that no exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) occurs?
Guidance (Editor):
Regarding the legal question of whether employment of exactly one year's duration based on a fixed-term contract falls under Section 2 Paragraph 3 Sentence 1 No. 2 of the Freedom of Movement Act/EU, the answer is affirmative.
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 28 October 2020 – L 19 AS 2630/17
Guidance (Editor)
1. Requirements for the definition of employee in the case of a foreigner for the granting of basic income support benefits (cf. LSG Berlin-Brandenburg, decision of 27 February 2017 – L 18 AS 2884/16).
2. He was employed by the company as a building cleaner for 18 hours per month, which equates to four to four and a half hours per week. His agreed wage was a gross salary of €171.90, or €9.55 per hour. This employment was therefore not entirely negligible (cf. in this context LSG NW, decision of August 5, 2017 – L 6 AS 783/17 B ER: nine hours of monthly working time completely subordinate).
Source: socialcourtsability.de
2.3 – Schleswig-Holstein State Social Court, Judgment of 29 October 2020 – L 6 AS 99/18
Reimbursement of wrongly received basic income support benefits due to concealment of realizable assets – Even a unit-linked life insurance policy without an exclusion of realization is considered realizable assets within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II).
Principle (Editor)
1. The fact that the amount to be reimbursed exceeds the plaintiff's available assets many times over does not justify the unlawfulness of the revocation of the benefit award and the reimbursement claim.
2. The assets to be taken into account completely preclude the plaintiff's entitlement to unemployment benefit II for the periods covered by the revocation. A "fictitious consumption" of the assets actually existing throughout is irrelevant. Realizable assets preclude the assumption of need for assistance as long as they actually exist (Federal Social Court, Judgment of April 25, 2018 – B 14 AS 15/17 R).
3. Given that the amount of the reimbursement significantly exceeds the amount of the assets to be taken into account, it could be reduced. Furthermore, the collection of the claim is generally considered unfair if it would jeopardize or destroy the debtor's livelihood (Federal Social Court, Judgment of April 25, 2018 – B 14 AS 15/17 R; Higher Social Court of North Rhine-Westphalia, Judgment of January 9, 2020 – L 7 AS 498/19).
Source: socialcourtsability.de
Note:
Juris Principle
1. When realizing life insurance policies as assets, the examination of obvious uneconomicalness is not to be limited to the "loss ratio" in relation to the substance value (paid-in) premiums and the market value (surrender value) (following BSG-B 14 AS 10/93 R).
2. In the case of Section 45 Paragraph 2 Sentence 3 No. 2 of the German Social Code, Book X (SGB X), the relationship between the contribution to be reimbursed and the assets originally to be used is irrelevant (following BSG-B 14 AS 15/17 R).
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1. SG Kassel, judgment of November 20, 2020 – S 2 AS 271/17
Guiding principle (Editor):
The housing market survey report submitted by the Job Center in the proceedings from 2014 remains inconclusive even after a "revision" in 2019 and is therefore not applicable.
Source: anwaltskanzlei-adam.de
Note:
See also: anwaltskanzlei-adam.de
3.2 – Social Court Berlin, Judgment of 08.12.2020 – S 179 AS 6138/17
Regarding the legality of claims for compensation under Section 34 of the German Social Code, Book II (SGB II), here denied – claim for compensation; socially unacceptable behavior; set-off; hardship; particular hardship; causality; causal chain
Guiding principle (Editor)
1. Just like sanctions under Section 31 et seq. of the German Social Code, Book II (SGB II), the assertion of a claim for compensation must not serve the repressive punishment of misconduct (Federal Constitutional Court, judgment of November 5, 2019, 1 BvL 7/16), but must leave room for overcoming the need for assistance through the affected person's own efforts.
2. The Chamber assumes that hardship due to reaching the economically reasonable capacity to pay exists for a person who is continuously entitled to benefits under the German Social Code, Book II (SGB II) during the claim period and at the time the reimbursement notices are issued, at least if the claim for reimbursement exceeds the sum of existing (protected) assets, with the exception of the allowance for necessary purchases pursuant to Section 12 Paragraph 2 No. 4 SGB II and the maximum amount that can be offset pursuant to Section 43 SGB II.
Source: socialcourtsability.de
Principle (Juris):
A hardship pursuant to Section 34 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) exists for a person who is continuously entitled to benefits under the SGB II during the period of the claim and at the time the reimbursement notices are issued, at least if the reimbursement claim exceeds the sum of existing (protected) assets, with the exception of the allowance for necessary purchases pursuant to Section 12 Paragraph 2 No. 4 of the SGB II and the maximum amount that can be offset pursuant to Section 43 of the SGB II.
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Gelsenkirchen Social Court, Judgment of 17 May 2016 – S 12 SO 225/13
Guidance (Editor):
A recipient of social assistance is entitled to have their previous heating cost allowance covered AND any subsequent heating cost claim, because a change of residence as a cost-cutting measure due to unreasonably high heating expenses is only reasonable if the overall gross heating costs are lower in an alternative residence (Federal Social Court, judgment of 12.06.2013 – B 14 AS 60/12 R).
Source: socialcourtsability.de
5. Decisions on asylum law and asylum seekers' benefits
5.1 – Social Court Kassel, Judgment of 19 November 2020 – S 12 AY 23/20
Legal basis: Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG – Keywords: AsylbLG, standard benefit level 2b, standard benefit level 1, collective accommodation, communal accommodation, Werra-Meißner district
Standard benefit level 1 in collective accommodations – Single persons in collective accommodations are entitled to standard benefit level 1 (based on SG Landshut, judgment of 14.10.2020 – S 11 AY 39/20)
This is because, in accordance with the ruling of the Social Court of Landshut (judgment of October 14, 2020, S 11 AY 39/20), Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted in a manner consistent with the constitution, such that those entitled to benefits must actually live together with at least one other person, and compatibility with the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law), in particular with the procedural requirements of the Federal Constitutional Court, can only be assumed, among other reasons, through such a constitutionally compliant interpretation of Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act in the version of August 15, 2019.
Guiding principle (Editor)
1. Significant concerns regarding the constitutionality of the benefit levels regulated in Section 3a Paragraph 1 No. 2 Letter b and Section 3a Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) for adult benefit recipients without partners who are accommodated in reception facilities, communal living arrangements or comparable accommodations.
Source: anwaltskanzlei-adam.de
Legal tip:
See also Social Court Landshut, judgment of October 14, 2020 – S 11 AY 39/20 and, more recently, Social Court Kassel – judgment of December 8, 2020 – file no.: S 12 AY 57/20; Social Court Kassel, judgment of November 19, 2020 – file no.: S 12 AY 22/20 and Social Court Kassel, judgment of November 19, 2020 – file no.: S 12 AY 56/20 – Single persons in communal accommodations are entitled to standard benefit level 1.
All decisions of the Kassel Social Court were obtained through attorney Sven Adam, Göttingen.
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – LSG Hessen, judgment of 09/24/2020 – L 1 KR 125/20, L 1 KR 179/20
Sickness benefits are exceptionally also payable in the case of late notification of illness
The LSG Darmstadt has ruled that statutory health insurance funds cannot refuse payment of sick pay on the grounds that the incapacity for work was not established without gaps if an insured person is referred to a later appointment by the doctor's office for organizational reasons on the next working day after the end of the last established incapacity for work.
Further information: www.juris.de
6.2 – The “spectre of welfare tourism” has (for now) been banished
On October 6, 2020, the European Court of Justice (ECJ) ruled that the exclusions from benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII) for individuals with a right of residence under Article 10 of Regulation (EC) No 492/2011 are contrary to EU law and therefore inadmissible. This welcome ruling affects EU citizens who have been employed in Germany and have children attending school there. The ruling will be implemented through a legislative amendment on January 1, 2021, but job centers and social welfare offices are already prohibited from applying these exclusions in such cases.
More information: www.ggua.de
I wish all readers a happy new year 2021!
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
