1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Saxon State Social Court, Judgment of 17.09.2020 – L 3 AS 709/18
Unemployment benefit II – Accommodation and heating – Credit from utility bill – Non-payment and offsetting against future rent claims by the landlord – Reduction of accommodation needs or crediting of the credit as income
Principle (Editor)
On the consideration of offsetting credits from operating cost statements against rent claims as income (see also LSG Baden-Württemberg, judgment of October 9, 2019 – L 2 AS 2481/18).
Source: socialcourtsability.de
1.2 – Saxon State Social Court, Judgment of 05.11.2020 – L 7 AS 83/17
LSG Saxony: Unemployment benefit II – Reimbursement of costs for journeys to outpatient medical treatments – unavoidable ongoing special need
The Saxon State Social Court confirms the legal opinion of the Social Court of Dresden (Judgment of 12 December 2016, Case No.: S 3 AS 5728/14):
Reimbursement of travel expenses for outpatient psychotherapy as an additional need according to § 21 para. 6 SGB II within the framework of basic income support benefits
Guiding principle (Editor):
1. Job centers must reimburse exceptional travel expenses for therapy – for additional needs exceeding the standard rate, amounting to approximately 8% of the standard rate.
2. The Chamber does not share the view expressly held by the Saxon State Social Court that travel expenses for outpatient therapy, which are not covered by health insurance, are not to be reimbursed by the basic income support provider (see decision of 25.09.2013, file no.: L 7 AS 83/12 NZB).
3. The legislature has exercised its discretion regarding the reimbursement of medically necessary costs by statutory health insurance (GKV) and has essentially removed travel expenses for necessary treatments from the GKV's benefits catalog. These are now only covered by the GKV in narrowly defined exceptional cases, namely when the transport itself is medically indicated, which is not the case here. Therefore, the plaintiff should not be forced into a hopeless legal dispute with the GKV.
4. The Senate no longer adheres to its contrary decision of 25.09.2013, L 7 AS 83/12 NZB (single judge) (as also the State Social Court of Baden-Württemberg, judgment of 18.03.2020, L 3 AS 3212/18).
5. The separation of the benefit systems of basic income support for jobseekers and statutory health insurance does not fundamentally preclude a claim under Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (following the Federal Social Court's judgment of December 12, 2013 – B 4 AS 6/13 R).
Source: socialcourtsability.de
1.3 – Saxon State Social Court, decision of 15 December 2020 – L 7 AS 245/20 B ER – legally binding
With a cost increase of around 40%, the relocation of those in need of assistance is neither plausible nor necessary
Guidance (Editor):
The obligation of the basic income support provider to cover additional costs presupposes that moving into the new apartment chosen by the person in need of assistance proves necessary and suitable to avert disadvantages of the previous apartment that are no longer tolerable, and that the costs of the new apartment are to be considered reasonable even in view of a comprehensible and plausible desire for change. In this case, however, this is denied because of a cost increase of around 40% (cf. Federal Social Court, judgment of November 24, 2011 – B 14 AS 107/10 R, para. 20; Saxon State Social Court, decision of October 26, 2015 – L 7 AS 932/15 B ER).
Source: socialcourtsability.de
1.4 – Hessian State Social Court, decision of 15 December 2020 – L 9 AS 535/20 B ER
Principle (Editor):
Recognition of the commencement of part-time studies when granting benefits to secure subsistence (cf., in effect, Thuringian State Social Court, decision of January 15, 2007 – L 7 AS 1130/06 ER).
Guidance (Editor)
1. For each semester that does not meet the requirements of Section 2 Paragraph 5 Sentence 1 of the Federal Training Assistance Act (BAföG), benefits under the BAföG are excluded, and the exclusion from benefits under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) is not applicable (similarly, Thuringian Higher Social Court, decision of January 15, 2007 – L 7 AS 1130/06 ER). This separate consideration of each semester also corresponds to the case law of the Federal Social Court (BSG), according to which eligibility for funding under Section 2 Paragraph 5 of the BAföG, and thus the exclusion from benefits, may cease during a leave of absence semester (BSG, judgment of March 22, 2012 – B 4 AS 102/11 R).
2. The opposing view, according to which eligibility for funding under Section 2 Paragraph 5 Sentence 1 of the Federal Training Assistance Act (BAföG) only ceases if the entire training is carried out on a part-time basis (in this sense, presumably, the Berlin-Brandenburg Higher Social Court, judgment of August 6, 2014 – L 18 AS 1672/13; Lower Saxony-Bremen Higher Social Court, decision of June 9, 2009 – L 13 AS 39/09 B ER), would, however, lead to the hardly justifiable result that a training course that is started as part-time training would be eligible for funding in its entirety if only one semester – possibly even the last one – were carried out full-time.
3. The even more far-reaching view that only those training courses which can only be carried out on a part-time basis are not eligible for funding under Section 2 Paragraph 5 Sentence 1 of the Federal Training Assistance Act (SG Berlin, Judgment of August 26, 2019 – S 34 AS 2277/18), however, finds no support in either the wording or the legislative history of Section 2 Paragraph 5 of the Federal Training Assistance Act.
Source: socialcourtsability.de
1.5 – Berlin-Brandenburg State Social Court, Judgment of 14 October 2020 – L 32 AS 1255/18
Shared custody arrangement – Accommodation costs – Child benefit calculation
Principle (Editor)
1. If separated parents care for their child equally in accordance with a shared custody arrangement under family law, the child has a housing need in the homes of both parents that is recognized under basic social security law (BSG, Judgment of 11.07.2019, B 14 AS 23/18 R).
2. If, in a genuine shared custody arrangement, separated parents provide for their children equally, the child benefit paid to the parent receiving benefits under Book II of the German Social Code (SGB II) is fully credited to this household (decision of the adjudicating Senate of November 4, 2014, L 32 AS 1605/14 B PKH and the judgment of the Social Court of Dresden of December 12, 2016, S 3 AS 1751/14).
Source: socialcourtsability.de
1.6 – Berlin-Brandenburg State Social Court, Judgment of 14 October 2020 – L 32 AS 2354/15
Reduction of unemployment benefit II by 30% of the standard benefit; important reason; Federal Constitutional Court – Judgment of 05.11.19 – 1 BvL 7/16
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Hildesheim, Decision of 27.11.2020 – S 33 AS 4176/20 ER, a contribution by Attorney Dr. Robin von Eltz
The Göttingen district's concept regarding housing costs for "Hartz IV" recipients is unlawful
The Hildesheim Social Court has now, in its decision of November 27, 2020 – S 33 AS 4176/20 ER, declared for the first time the current expert opinion of the Göttingen district on the determination of the reasonable costs of accommodation (prepared by the Institute for Housing and Environment – IWU) to be unlawful.
The main criticism was that the municipalities of Rosdorf and Bovenden were used as a comparison area, even though these municipalities are located north and south of Göttingen, respectively, and therefore do not form a contiguous area. Furthermore, there is no comparable infrastructure or transport connection. The court therefore ordered the district to immediately cover the actual rent.
Continue reading at anwalt.de
2.2 – SG Kiel, Judgment of 30.09.2020 – S 42 AS 773/17 –, a contribution by Attorney Helge Hildebrandt
Personal school supplies also for attending an adult education center
Pupils receiving benefits under the German Social Code Book II (SGB II) (or receiving housing benefit, child supplement or asylum seeker benefits) who attend a preparatory course at an adult education center to obtain the intermediate school leaving certificate are entitled to financial assistance for personal school supplies in accordance with Section 28 Paragraph 3 of the German Social Code Book II (SGB II), currently amounting to €150 per school year.
More information: sozialberatung-kiel.de
Legal tip:
See also LSG Rheinland-Pfalz, judgment of 27.04.2016 – L 6 AS 303/15
School supplies for adult education center course to prepare for secondary school leaving certificate
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Lower Saxony-Bremen State Social Court, Judgment of 22-10-2020 – L 8 SO 77/20
Social assistance benefits for Germans abroad – income situation here: pension payment approximately €1,000.00 per month
Guiding principle (Editor):
No social assistance is granted to Germans abroad because, due to the plaintiff's income situation, this is not unavoidable because of an exceptional emergency within the meaning of Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book XII.
Source: socialcourtsability.de
Note:
No social assistance is available for family members of Germans living abroad.
The LSG Celle-Bremen has ruled that family members of Germans living abroad who are not themselves German citizens are not entitled to social assistance.
The LSG Celle-Bremen has confirmed the legal opinion of the social welfare office.
According to the State Social Court, a distinction had to be made between the man's claims and those of his wife and child: Generally, no benefits are provided for family members of Germans living abroad who themselves do not hold German citizenship. Benefits for Germans living abroad are only considered in cases of exceptional hardship and when a return to Germany is impossible. Such hardship did not exist in the man's case, as a person can live comfortably in Thailand on just under €1,000 per month. Even in Germany, this amount is usually sufficient to cover living expenses without basic social security. The family's circumstances were irrelevant, as no further claims existed due to the lack of German citizenship.
Lower court:
Social Court Bremen, judgment of 21 April 2020 – S 33 SO 160/18
Source: Press release of the LSG Celle-Bremen No. 25/2020 dated 14.12.2020
4. Decisions on asylum law and asylum seekers' benefits
4.1 – Hildesheim Social Court – Decision of 11 December 2020 – Case No.: S 42 AY 4025/20 ER
Legal norms: Sections 3, 3a AsylbLG, Section 2 AsylbLG – Keywords: No violation of the duty to cooperate in obtaining a passport if the country of origin does not recognize nationality
Source: anwaltskanzlei-adam.de
4.2 – Hildesheim Social Court – Decision of 10 December 2020 – Case No.: S 42 AY 4026/20 ER
Legal norms: Sections 3, 3a AsylbLG, Section 2 AsylbLG – Keywords: No violation of the duty to cooperate in obtaining a passport if the country of origin does not recognize the nationality
Source: anwaltskanzlei-adam.de
4.3 – Osnabrück Social Court, decision of 13 November 2020 – S 44 AY 104/20 ER
Assumption of accommodation costs for a rented apartment, which is to be interpreted as an application for a guarantee.
Principle (Juris):
If the benefit recipients currently live in communal accommodation, an assurance may only be given if the move is necessary and the costs in the new apartment are necessary and reasonable within the meaning of Section 3 Paragraph 3 AsylbLG.
Guidance (Editor)
1. Costs for an apartment are only covered if moving out of communal accommodation is necessary, as Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) establishes the principle that accommodation in communal housing is the norm (Lower Saxony-Bremen State Social Court, decision of October 11, 2006, L 7 AY 10/06 ER). The appropriateness of the accommodation costs is part of the guarantee, as the administration, bound by law, can generally only cover these costs. Furthermore, the "all-or-nothing principle," developed in social assistance before 2005, still applies in asylum seekers' benefits law (Federal Administrative Court, judgment of October 1, 1998, 5 C 15/97). Accordingly, if the accommodation is unsuitable, the reasonable costs are not payable if the benefit provider provides adequate housing (Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, § 3 AsylbLG (as of 26.10.2020), para. 154).
2. The Chamber leaves open the question of whether the move is necessary here; at least the costs of accommodation are not necessary and appropriate within the meaning of Section 3 Paragraph 3 Sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG), because the costs incurred in the new apartment are above the rent ceiling of the respondent under the German Social Code, Book II (SGB II) and Book XII (SGB XII).
Source: socialcourtsability.de
Legal tip:
See LSG NRW decision of 02.04.2020 – L 20 AY 27/20 B ER and L 20 AY 28/20 B – legally binding – requirements for exceptional accommodation in a private apartment
4.4 – Aachen Social Court, Judgment of 24 November 2020 – S 20 AY 32/20
Full benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) for Iraqi nationals – The reduction provision of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) presupposes an obligation to leave the country and the possibility of deportation
Guidance (Editor)
1. The Chamber – as in the preliminary injunction decision of June 2, 2020 (S 20 AY 31/20 ER), as well as the Higher Social Court of North Rhine-Westphalia in its decision of September 22, 2020 (L 20 AY 41/20 B ER) and unlike the defendant – is of the opinion that Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) additionally requires, as an unwritten element of the offense, that a return to the country granting protection – in this case, Hungary – is legally and factually possible and also reasonable for the person concerned (as already held by: Higher Social Court of North Rhine-Westphalia, decisions of March 27, 2020 – L 20 AY 20/20 B ER – and of January 21, 2020 – L 20 AY 45/19 B ER, referring to Higher Social Court of Celle, decision of November 19, 2019 – L 8 AY 26/19 B ER).
2. This cannot be established for the plaintiffs.
3. The Chamber considers the opposing view, that Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) does not contain such an unwritten element of the offense (cf. Bavarian Higher Social Court, decision of July 8, 2019 – L 18 AY 21/19 B ER), to be incorrect. Without such an unwritten requirement, those affected would have no possibility of avoiding the restriction of benefits under Section 1a Paragraph 4 No. 2 AsylbLG through reasonable conduct – namely, returning to the country granting protection (North Rhine-Westphalia Higher Social Court, decisions of September 22, 2020 – L 20 AY 41/20 B ER – and of January 21, 2020 – L 20 AY 45/19 B ER). Currently – almost two months after the findings of the LSG NRW in its decision of 22.09.2020 (L 20 AY 41/20 B ER) – it is not yet predominantly likely that a return to Hungary is possible or reasonable for the plaintiffs.
Source: socialcourtsability.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Hartz IV recipients in Bremerhaven are not entitled to a higher rent subsidy
The Bremen Social Court has issued a fundamental ruling on the permissible rent for recipients of basic income support for job seekers, also known as Hartz IV benefits, in Bremerhaven. According to the ruling, the rent ceiling set by the city for Hartz IV recipients was lawful between 2011 and 2020. Most recently, the maximum gross rent (excluding utilities) for a single-person household in the city of Bremerhaven was €329. In October, the city council decided to raise this amount to €387, effective November 2020.
The court's decision refers to four cases between 2015 and 2020.
More information: www.butenunbinnen.de
Note:
SG Bremen, Judgment of 03.03.2020 – S 16 AS 947/17
The rent index 2015/2016 for Bremerhaven, which was used by the Bremerhaven Job Center and the Bremerhaven City Council for its professional directive on benefits for accommodation and heating under the German Social Code, Book XII and Book II (SGB XII and SGB II), which came into force on August 1, 2016, meets the requirements for a coherent concept.
We wish all our readers a happy and prosperous new year.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
