1. Decisions of the state social courts on basic security for job seekers (SGB II)
1.1 – State Social Court of North Rhine-Westphalia, judgment of October 28, 2020 – L 12 AS 2055/18 – Revision approved
To take into account the needs for accommodation and heating, namely the consideration of the ignition and pumping current for the operation of a gas boiler
Guidance (editor)
- Electricity costs for the operation of a gas boiler, which is used for heating and hot water preparation, are included in the requirements for accommodation and heating according to Section 22 Paragraph 1 Sentence 1 SGB II and are not included in the household energy requirements within the meaning of Section 20 Paragraph 1 S. 1 SGB II covered (for details, see BSG judgment of December 3, 2015, B 4 AS 47/14 R).
- The case law uses the value of 5% of the fuel costs as the “experience value” (so LSG NRW judgment of February 19, 2013, L 2 AS 2081/12; LSG Berlin-Brandenburg judgments of March 28, 2019, L 32 AS 2123/14, and of September 14, 2016, L 31 AS 300/15; LSG Niedersachsen-Bremen judgment of July 10, 2012, L 7 AS 988/11 ZVW; LSG Baden-Württemberg judgment of March 25, 2011, L 12 AS 2404/08).
- The extent to which these empirical values are supported by scientific findings is, however, not decisive. Rather, there is only room for an estimate according to Section 287 Paragraph 2 ZPO if the complete clarification of all relevant circumstances is associated with difficulties (BSG judgment of December 3, 2015, B 4 AS 47/14 R).
Source: socialcourtsability.de
1.2 – State Social Court of North Rhine-Westphalia, decision v. December 10, 2020 – L 7 AS 1662/20 B ER - legally binding
No order for the suspensive effect of a lawsuit against an integration decision from the JobCenter
Guidance (editor)
- The integration decision is not unlawful simply because it is not limited to a period of six months, but is intended to apply until “further notice”.
- Due to the changes to Section 15 SGB II on August 1st, 2016, an integration agreement, which replaces the integration decision and to which the same requirements apply, should no longer be concluded as a rule for six months. Rather, the period of validity can be flexibly agreed within the framework of Section 15 Paragraph 3 Sentence 1 SGB II. This includes the possibility of unlimited validity. This can be expressly agreed (“until further notice”) or tacitly result from the lack of an agreed regulation during the term. According to Section 15 Paragraph 3 Sentence 1 SGB II, the integration agreement or the integration decision should be reviewed and updated together, but no later than after six months (see BSG judgment of March 21, 2019 - B 14 AS 28/18 R).
- The respondent complied with this legal requirement with point 6 of the integration decision (“update of the replacing administrative act”).
Source: socialcourtsability.de
1.3 – State Social Court of Saxony-Anhalt, judgment of June 17, 2020 – L 4 AS 713/15 legally binding
Matters according to SGB II (AS) - On the continuation of a declaratory action after a completed integration agreement by means of an administrative act (here: risk of repetition)
Source: socialcourtsability.de
Note:
Likewise LSG Saxony-Anhalt, judgment of June 17, 2020 – L 4 AS 710/15
1.4 – State Social Court of Saxony-Anhalt, decision of. September 3, 2020 – L 2 AS 803/18 – legally binding
Entitlement to legal aid (PKH) with payment in installments – compensation for additional expenses – deduction from income
Compensation for additional expenses for a work opportunity in accordance with Section 16d SGB II (“One Euro Job”) must be taken into account as income within the scope of legal aid.
Guidance (editor)
- Income includes all income in money or its value (Section 115 Paragraph 1 Sentence 2 ZPO), including basic security benefits for job seekers.
- In addition, the additional expense compensation granted to the plaintiff for taking up a job opportunity in accordance with Section 16d SGB II must also be taken into account (see Sächsisches LSG, decision of February 23, 2009 - L 3 B 138/07 AS-PKH - juris para. 4 ; LSG Saxony-Anhalt, decision of April 15, 2011 - L 5 AS 364/10 B ER -, juris para. 36 (each on Section 16 Para. 3 Sentence 2 SGB II old version)). Unlike Section 11a Paragraph 1 No. 1 SGB II, there are no exceptions in legal aid law that would prevent crediting.
- A job opportunity according to Section 16 SGB 2 (one-euro job) is not gainful employment within the meaning of Section 115 ZPO. The resulting additional expense compensation is not income from employment, but rather a social benefit based on public law regulations.
Source: socialcourtsability.de
1.5 – State Social Court of Saxony-Anhalt, decision of. November 30, 2020 – L 2 AS 38/20 – legally binding
Preliminary proceedings under social law - rejection of an objection as inadmissible - proof of power of attorney - isolated action for annulment
Guiding principle (Juris)
- In social court proceedings, an isolated challenge to an objection decision is permissible if the person concerned is adversely affected for the first time due to a procedural error in the objection procedure or in addition to the original decision (cf. BSG, judgment of August 15, 1996, 9 RV 10/95, juris RN 14; judgment v March 25, 1999, B 9 SB 14/97 R, juris RN 20).
- There may also be a need for legal protection for such an approach in the case of a bound decision. However, it presupposes that when the authority deals with the matter in the context of the objection procedure, a decision favorable to the person concerned appears at least possible (also: LSG Niedersachsen-Bremen, B v July 5, 2012, L 11 AS 759/11, juris RN 30 ).
- In order for an objection to be rejected without a substantive examination due to the lack of proof of a power of attorney, the representative must first be requested to submit the power of attorney within a certain period of time; This request must generally be accompanied by the statement that the objection will otherwise be rejected as inadmissible.
Source: socialcourtsability.de
1.6 – Hessian State Social Court, decision v. 12/15/2020 – L 9 AS 546/20 B ER
Basic security for job seekers – no four-year limitation period – 30-year limitation period
Guideline (editor)
- The 4-year limitation period of Section 50 Paragraph 4 SGB This expires in 30 years in accordance with Section 52 SGB 17 -; Thuringian LSG, judgment of March 22, 2018 - L 9 AS 323/16 -; LSG North Rhine-Westphalia, judgment of April 4, 2017 - L 2 AS 1921/16).
- If the corresponding application of Section 50 Paragraph 4 Sentence 1 SGB X is excluded in this case, there is no need to decide whether Section 50 Paragraph 4 SGB SGB Palatinate, judgment of September 27, 2018 - L 1 AL 88/17 -; Baumeister in: Schlegel/Voelzke, jurisPK-SGB , SGB 29).
Source: socialcourtsability.de
2. Decisions of the social courts on basic security for job seekers (SGB II)
2.1 – Berlin Social Court, judgment of December 8, 2020 – S 179 AS 10734/19
electronic objection; EGVP; Electronic court and administrative mailbox; Access; opening of access; Dedication; act of dedication; information on legal remedies; Legal appeal
Guiding principle (Juris)
- Access to receive electronic documents in accordance with Section 36a Paragraph 1 SGB I is open if the authority has dedicated technically available access.
- An implied and general dedication occurs at the latest when the authority is included in the address directory of the Electronic Court and Administrative Mailbox (EGVP), even if the authority internally intends to only communicate electronically with the courts.
- From this point on, the authority must provide information about the possibility of electronic objection filing.
Source: socialcourtsability.de
Note:
There are different opinions as to whether and when the Berlin job centers opened the electronic access route; the judgment shows different legal opinions.
2.2 – Cologne Social Court, decision of December 18, 2020 (S 30 AS 4100/20 ER):
Principle Dr.
Manfred Hammel On the affirmation of the limitation of the reasons for exclusion of claims according to Section 7 Paragraph 1 Sentence 2 SGB II in the case of an Austrian employable person entitled to benefits living in the federal territory (Section 7 Paragraph 1 Sentence 1 SGB II) based on the Article 2 Paragraph 1 of the “German -Austrian Agreement for Welfare and Youth Welfare (DÖFA)” of January 17, 1966, the equal treatment requirement.
The DÖFA acts as direct federal law.
An intention to use public welfare services in the federal territory does not exist if a non-German person was in marginal employment immediately after entering the country and the continued search for work was very difficult due to the effects of the corona pandemic.
2.3 – SG Cottbus, November 19th, 2020 – S 29 AS 1120/20 ER
Orientation assistance lawyer Dr.
Jens-Torsten Lehmann Trial settlement instead of a judicial decision shortly before Christmas: one-off grant for the purchase of an internet-capable computer and accessories in the amount of EUR 300.00
Source: ra-jtlehmann.de
2.4 – SG Cottbus, November 19th, 2020 – S 29 AS 1164/18
Principle Lawyer Dr.
Jens-Torsten Lehmann Additional need for expensive nutrition in liver cirrhosis in accordance with the current recommendation of the German Association from September 16, 2020.
Source: ra-jtlehmann.de
3. Decisions of the state social courts on social assistance (SGB XII)
3.1 – Schleswig-Holstein State Social Court, judgment of September 24, 2020 – L 9 SO 72/17 – Revision pending BSG B 8 SO 16/20 R
Disputes according to SGB XII, other services, offsetting additional heating costs against electricity credits
Guidance (editor)
On the question of whether offsetting a balance saved from the standard rate with additional demands for heating costs can lead to a requirement that is lower than the offset amount.
Guiding principle (Juris)
- If a supplier offsets its additional heating costs against an existing electricity cost credit saved from the standard requirement, this offsetting does not lead to a lower heating requirement for the benefit recipient.
- According to the authority principle applicable in Schleswig-Holstein, the lawsuit must be directed against the authority whose name in matters of social assistance is “Kreis… – Der Landrat”.
Source: socialcourtsability.de
4. Decisions on asylum law and AsylbLG
4.1 - Hessian State Social Court, decision of December 22, 2020 - Ref.: L 4 AY 24/20 B ER
Norms: §§ 3, 3a AsylbLG - Keywords: Benefits according to the AsylbLG even despite residence outside the assigned district
continue with RA Sven Adam
4.2 – SG Berlin, decision by. September 25, 2020 – S 90 AY 58/20
A blanket reference to “Corona” does not justify inaction on the part of the authority
Guiding principle beck-online/jurisprudence
- 1. The blanket reference by an authority to the Covid-19 pandemic does not constitute a sufficient reason within the meaning of Section SGG Section 88 Paragraph SGG Section 88 Paragraph 1 Sentence 2 SGG.
- 2. Before filing an action for failure to act, there is no obligation to check with the authorities in advance. Nothing else applies during a pandemic.
- 3. If the authority has shown by means of a partial remedy decision that it has already dealt with the matter, there is, in exceptional cases - in the present individual case - an obligation to inquire before filing an action for failure to act.
Note:
Full text printed in ASR 2020, 227 (with note by Gerloff)
5. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
5.1 – Fulda Social Court, judgment of October 27, 2020 – S 4 KG 1/20
Child benefit for yourself - ignorance of the parents' whereabouts - subjective assessment standard - abusive ignorance
Guidance (editor)
Syrian refugees are entitled to child benefit for themselves even if the plaintiff does not know the whereabouts of their parents. (see SG Landshut, decision of April 17, 2012 - S 10 KG 1/12 ER).
Source: socialcourtsability.de
Note: Guiding principle (Juris)
- The regulations regarding entitlement to child benefit for oneself are not to be interpreted restrictively as an exception. In particular, any negligent ignorance of the parents' whereabouts does not stand in the way of the claim (following BSG, judgment of April 8, 1992 (10 RKg 12/91 - SozR 3-5870 § 1 No. 1).
- The entitlement to child benefit for oneself can therefore only be countered by the inherent barrier to legal abuse that is inherent in every right. In the case of unaccompanied refugee minors, this is regularly denied if, after fleeing to the Federal Republic of Germany, the court is convinced that they no longer had any contact with their parents in their country of origin; They are also not obliged to use international (non-governmental) tracing services to determine the whereabouts of their parents in order to undermine their entitlement to child benefit.
5.2 – The European Court of Justice will decide on the exclusion of child benefit for Union citizens
The Bremen Finance Court has submitted the question to the European Court of Justice as to whether the exclusion from child benefit for non-working Union citizens in Germany is contrary to European law (Bremen Finance Court: decision of August 20, 2020 - 2 K 99/20; ECJ, case C-411/20) .
Since July 2019, Section 62 Paragraph 1a EStG stipulates that Union citizens are only entitled to child benefit within the first three months after entry if they are already employed during this time. Even after this, you are only entitled to child benefit if you fulfill or have previously fulfilled a reason for freedom of movement that does not just consist of looking for work. In our opinion, this regulation is inadmissible under European law and fatal in terms of social policy. The Bremen Finance Court obviously sees it that way and has therefore asked the European Court of Justice for clarification. It is not yet clear when he will make a decision.
In terms of advisory practice, this means: In cases in which the family fund rejects child benefit because Union citizens are not yet employed in the first three months of their stay, those affected should file an objection, justifying this with the procedure before the European Court of Justice and at the same time request that the procedure be “suspended” in accordance with Section 363 Paragraph 2 Sentence 2 of the Tax Code (AO):
further: www.ggua.de
5.3 - PM - Jobcenter Werra-Meißner gives up in appeal proceedings before the Hessian State Social Court due to costs of accommodation with subsistence benefits
A contribution from Attorney Sven Adam, Göttingen
can be found here: anwaltskanzlei-adam.de
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
