1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – North Rhine-Westphalia State Social Court, Judgment of 28 October 2020 – L 12 AS 2055/18 – Appeal allowed
To take into account the needs for accommodation and heating, in particular the consideration of the ignition and pump current for the operation of a gas boiler
Guidance (Editor)
- Although electricity costs for operating a gas boiler used for heating and hot water preparation are included in the needs for accommodation and heating according to § 22 para. 1 sentence 1 SGB II and are not covered by the household energy included in the standard allowance within the meaning of § 20 para. 1 sentence 1 SGB II (for details see BSG judgment of 03.12.2015, B 4 AS 47/14 R).
- Case law uses 5% of fuel costs as a "benefit from experience" (see LSG NRW judgment of 19.02.2013, L 2 AS 2081/12; LSG Berlin-Brandenburg judgments of 28.03.2019, L 32 AS 2123/14, and of 14.09.2016, L 31 AS 300/15; LSG Niedersachsen-Bremen judgment of 10.07.2012, L 7 AS 988/11 ZVW; LSG Baden-Württemberg judgment of 25.03.2011, L 12 AS 2404/08).
- The extent to which these empirical values are supported by scientific findings is not decisive. Rather, an estimate pursuant to Section 287 Paragraph 2 of the German Code of Civil Procedure (ZPO) is only permissible if the complete clarification of all relevant circumstances is associated with difficulties (Federal Social Court judgment of December 3, 2015, B 4 AS 47/14 R).
Source: socialcourtsability.de
1.2 – North Rhine-Westphalia State Social Court, decision of 10 December 2020 – L 7 AS 1662/20 B ER – legally binding
No order for the suspensive effect of an action against an integration decision of the Job Center
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 amendments to Section 15 of the German Social Code, Book II (SGB II) effective August 1, 2016, an integration agreement, which replaces the integration decision and for which the same provisions apply, is no longer to be concluded for a standard six-month period. Instead, the period of validity can be flexibly agreed upon within the framework of Section 15, Paragraph 3, Sentence 1 of the SGB II. This includes the possibility of indefinite validity. This can be expressly agreed upon ("until further notice") or implicitly arise from the absence of an agreed-upon term. According to Section 15, Paragraph 3, Sentence 1 of the SGB II, the integration agreement or the integration decision should be jointly reviewed and updated no later than six months after its issuance (see Federal Social Court (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 17 June 2020 – L 4 AS 713/15 legally binding
Matters under the German Social Code, Book II (SGB II) (AS) – On the action for a declaratory judgment after a completed integration agreement by means of an administrative act (here: risk of recurrence)
Source: socialcourtsability.de
Note:
See also LSG Saxony-Anhalt, judgment of 17.06.2020 – L 4 AS 710/15
1.4 – State Social Court of Saxony-Anhalt, decision of 03.09.2020 – L 2 AS 803/18 – legally binding
Entitlement to legal aid (PKH) with installment payments – additional expense allowance – deduction from income
Additional compensation for a work opportunity pursuant to Section 16d SGB II (“one-euro job”) must be taken into account as income within the framework of legal aid.
Guidance (Editor)
- Income includes all receipts in cash or in kind (§ 115 para. 1 sentence 2 ZPO), including basic income support for job seekers.
- In addition, the additional expense allowance granted to the plaintiff for participating in a work opportunity pursuant to Section 16d of the German Social Code, Book II (SGB II), must also be taken into account (see Saxony Higher Social Court, decision of February 23, 2009 – L 3 B 138/07 AS-PKH – juris para. 4; Saxony-Anhalt Higher Social Court, decision of April 15, 2011 – L 5 AS 364/10 B ER –, juris para. 36 (both concerning Section 16 para. 3 sentence 2 SGB II, old version)). Unlike Section 11a para. 1 no. 1 SGB II, the law on legal aid does not contain any exception that would preclude its offsetting.
- A work opportunity under Section 16 of the German Social Code, Book II (SGB II) (one-euro job) is not gainful employment within the meaning of Section 115 of the German Code of Civil Procedure (ZPO). The resulting additional expense allowance is not income from gainful employment, but a social benefit based on public law regulations.
Source: socialcourtsability.de
1.5 – State Social Court of Saxony-Anhalt, decision of 30 November 2020 – L 2 AS 38/20 – legally binding
Social law preliminary proceedings – rejection of an objection as inadmissible – proof of power of attorney – separate action for annulment
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 or in addition to the original decision by a procedural error in the objection proceedings (see BSG, judgment of 15 August 1996, 9 RV 10/95, juris RN 14; judgment of 25 March 1999, B 9 SB 14/97 R, juris RN 20).
- A need for legal protection in such a case can also exist in the case of a mandatory decision. However, it presupposes that, during the substantive review by the authority within the framework of the objection procedure, a decision favorable to the affected party appears at least possible (similarly: Lower Saxony-Bremen Higher Social Court, decision of July 5, 2012, L 11 AS 759/11, juris para. 30).
- In order for an objection to be dismissed without substantive review due to the lack of proof of authorization, it is first necessary to request the representative to submit the authorization within a specific period; this request must generally be combined with the warning that the objection will otherwise be dismissed as inadmissible.
Source: socialcourtsability.de
1.6 – Hessian State Social Court, decision of 15 December 2020 – L 9 AS 546/20 B ER
Basic income support for job seekers – no four-year statute of limitations – 30-year statute of limitations
Guiding principle (Editor)
- The four-year limitation period of Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) does not apply to a reimbursement claim established by a legally binding reimbursement order pursuant to Section 328 Paragraph 3 of the German Social Code, Book III (SGB III). This claim is subject to a 30-year limitation period pursuant to Section 52 of the German Social Code, Book X (LSG Berlin-Brandenburg, Decision of July 2, 2020 – L 14 AS 553/20 B ER –; LSG Saxony-Anhalt, Judgment of June 6, 2019 – L 4 AS 272/17 –; Thuringian Higher Social Court, Judgment of March 22, 2018 – L 9 AS 323/16 –; Higher Social Court North Rhine-Westphalia, Judgment of April 4, 2017 – L 2 AS 1921/16).
- If the corresponding application of Section 50 Paragraph 4 Sentence 1 of the German Social Code, Book X (SGB X) is precluded in this case, it is unnecessary to decide whether Section 50 Paragraph 4 SGB X, as a priority special provision for the determination of a reimbursement claim by administrative act, takes precedence over the provision of Section 52 Paragraph 2 SGB X and whether only additional administrative acts for the enforcement of the reimbursement claim determined by administrative act fall under Section 52 Paragraph 2 SGB X (affirmative: Higher Social Court of Berlin-Brandenburg, decision of December 14, 2018 – L 34 AS 2224/18 B ER –; Higher Social Court of Rhineland-Palatinate, judgment of September 27, 2018 – L 1 AL 88/17 –; Baumeister in: Schlegel/Voelzke, jurisPK-SGB X, 2nd ed. 2017, Section 50 marginal note 126 with further references; Becker in: Hauck/Noftz, SGB X, As of August 2016, § 50 para. 95; contra: SG Reutlingen, judgment of September 2, 2020 – S 4 AS 1417/19 -; for the whole see also Geiger, info also 2019, 201 and 2020, 29).
Source: socialcourtsability.de
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Berlin, Judgment of 08.12.2020 – S 179 AS 10734/19
Electronic objection; EGVP; Electronic Court and Administrative Mailbox; Access; Opening of access; Dedication; Dedication act; Legal remedy information; Legal remedies information
Principle (Juris)
- Access for receiving electronic documents pursuant to Section 36a Paragraph 1 of the German Social Code, Book I (SGB I) is granted when the authority has dedicated a technically available access point.
- A tacit and general dedication exists at the latest upon the inclusion of the authority in the address directory of the Electronic Court and Administrative Mailbox (EGVP), even if the authority intends internally to communicate electronically only with the courts.
- From this point on, the authority must inform the public about the possibility of submitting an objection electronically.
Source: socialcourtsability.de
Note:
There are differing opinions as to whether and when the Berlin job centers opened the electronic access route; the judgment reveals different legal interpretations.
2.2 – Cologne Social Court, decision of December 18, 2020 (S 30 AS 4100/20 ER):
Guiding principle by Dr. Manfred Hammel:
On the affirmation of the restriction of the grounds for exclusion of entitlement pursuant to Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) in the case of an Austrian person capable of working and entitled to benefits (Section 7 Paragraph 1 Sentence 1 SGB II) living in the federal territory, based on the principle of equal treatment arising from Article 2 Paragraph 1 of the "German-Austrian Agreement on Welfare and Youth Welfare (DÖFA)" of January 17, 1966.
The DÖFA acts as direct federal law.
There is no intention to claim public welfare benefits in the federal territory if, immediately after entering Germany, a non-German person engaged in marginal employment here, and further job searching proved very difficult due to the effects of the Corona pandemic.
2.3 – SG Cottbus, November 19th, 2020 – S 29 AS 1120/20 ER
Guidance from lawyer Dr. Jens-Torsten Lehmann:
Settlement instead of a judicial decision shortly before Christmas: one-time grant of €300.00 for the purchase of an internet-enabled computer and accessories.
Source: ra-jtlehmann.de
2.4 – SG Cottbus, November 19th, 2020 – S 29 AS 1164/18
Guiding principle of lawyer Dr. Jens-Torsten Lehmann:
Additional needs for costly nutrition in cases of liver cirrhosis in accordance with the current recommendation of the German Association dated 16.09.2020.
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 24 September 2020 – L 9 SO 72/17 – Appeal pending before the Federal Social Court (BSG) B 8 SO 16/20 R
Disputes under the German Social Code Book XII (SGB XII), further benefits, offsetting heating cost arrears against electricity credits
Guidance (Editor)
On the question of whether offsetting a credit balance saved from the standard benefit rate against subsequent demands for heating costs can lead to a lower need equal to the offset amount.
Principle (Juris)
- If a utility company offsets its heating cost claim against a simultaneously existing electricity cost credit saved from the standard benefit, this offset does not lead to a lower heating requirement for the benefit recipient.
- According to the principle of jurisdiction applicable in Schleswig-Holstein, the lawsuit must be directed against the authority whose designation in matters of social assistance is "Kreis… – Der Landrat" (District… – The District Administrator).
Source: socialcourtsability.de
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – Hessian State Social Court, decision of 22 December 2020 – Case No.: L 4 AY 24/20 B ER
Legal provisions: Sections 3, 3a AsylbLG – Keywords: Benefits under the AsylbLG even if residence is outside the assigned district
Continued with attorney Sven Adam
4.2 – SG Berlin, decision of 25.09.2020 – S 90 AY 58/20
A blanket reference to "Corona" does not justify inaction by the authorities
Principle beck-online/Case Law
- 1. A general reference by an authority to the Covid-19 pandemic does not constitute a sufficient reason within the meaning of Section 88 Paragraph 1 Sentence 2 of the Social Court Act (SGG).
- 2. There is no obligation to inquire with the authority before filing an action for failure to act. This also applies during a pandemic.
- 3. If the authority has shown by a partial remedy decision that it has already dealt with the matter, there is, exceptionally – 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 commentary by Gerloff)
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Fulda Social Court, Judgment of 27 October 2020 – S 4 KG 1/20
Child benefit for oneself – lack of knowledge of the parents' whereabouts – subjective standard of assessment – abusive lack of knowledge
Guidance note (Editor):
A Syrian refugee is entitled to child benefit for himself even if the plaintiff does not know the whereabouts of his parents. (cf. Social Court Landshut, decision of April 17, 2012 – S 10 KG 1/12 ER).
Source: socialcourtsability.de
Note: Legal principle (Juris)
- The regulations concerning the entitlement to child benefit for oneself are not to be interpreted restrictively as an exception. In particular, even negligent ignorance of the parents' whereabouts does not preclude the entitlement (following BSG, judgment of April 8, 1992 (10 RKg 12/91 – SozR 3-5870 § 1 No. 1)).
- The only defense against a claim to child benefit for oneself is the inherent limitation of legal abuse. Such abuse is regularly denied in the case of unaccompanied minor refugees if, after their flight to the Federal Republic of Germany, the court is convinced that they have had no further contact with their parents in their country of origin; nor are they obligated to use international (non-governmental) search services to locate their parents in order to jeopardize their child benefit claim.
5.2 – The European Court of Justice will decide on the exclusion of EU citizens from child benefits
The Bremen Finance Court has referred the question to the European Court of Justice as to whether the exclusion of non-working EU citizens from child benefit in Germany is contrary to European law (Bremen Finance Court: decision of 20.08.2020 – 2 K 99/20; ECJ, case C-411/20).
Since July 2019, Section 62 Paragraph 1a of the German Income Tax Act (EStG) stipulates that EU citizens are only entitled to child benefit within the first three months after entering Germany if they are already employed during this period. Even after this initial three-month period, entitlement to child benefit exists only if they fulfill, or previously fulfilled, a ground for freedom of movement that is not limited to job seeking. In our opinion, this regulation is inadmissible under EU law and disastrous from a social policy perspective. The Bremen Tax Court apparently shares this view and has therefore requested clarification from the European Court of Justice. It is not yet clear when the Court will reach a decision.
For advisory practice, this means: In cases where the family benefits office rejects child benefit because EU citizens are not employed during the first three months of their stay, those affected should file an objection, justify it with the proceedings before the European Court of Justice and at the same time request that the proceedings be "suspended" pursuant to Section 363 Paragraph 2 Sentence 2 of the German Fiscal Code (AO):
More information: www.ggua.de
5.3 – PM – Jobcenter Werra-Meißner gives up in appeal proceedings before the Hessian State Social Court regarding housing costs in subsistence benefits
An article by attorney Sven Adam, Göttingen,
can be found here: anwaltskanzlei-adam.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
