1. Decisions of the Federal Social Court on basic security according to (SGB II) and on social assistance (SGB XII)
1.1 – BSG, judgment of September 11, 2020 – B 8 SO 3/19 R
Involvement of the plaintiff as heiress to reimburse costs.
BSG: Loan-based social assistance benefits cannot be reclaimed by the heir
Guidance (editor)
1. The defendant has no claim to reimbursement of costs against the plaintiff as heir to her brother.
2. When social assistance benefits are provided in the form of a loan, the loan repayment claim, as a debt arising from the testator, reduces the value of the estate at the time of the inheritance. In this respect, the general civil law regulations apply when determining the value of the estate, as the BSG has already decided. However, the claim for restitution, which is the basis of the testator's debt, excludes a claim for reimbursement of costs relating to the same item (as an inheritance debt); The social benefit provided in the form of a loan cannot be claimed again (or alternatively) by the social welfare provider through an administrative act.
Source: socialcourtsability.de
1.2 – BSG, judgment of 01/28/2021 – B 8 SUN 9/19 R
personal budget – time limit – amount
BSG: Personal budgets cannot be limited
A personal budget for disabled people paid as part of integration assistance may not be limited in time. Although the needs of the disabled or sick person can be reassessed every two years, the Federal Social Court (BSG) in Kassel has now ruled that there is no general limitation on this form of support. (AZ: B 8 SO 9/19 R) As a result of the decision, those affected do not have to repeatedly submit an application for integration assistance due to a time limit.
Source: www.haeusliche-pflege.net and appointment report No. 5/21 from the BSg v. January 28, 2021
1.3 – BSG, judgment of 01/27/2021 – B 14 AS 42/19 R
Exclusion of benefits - EU foreigners - no exclusion of benefits if there is a right of residence in accordance with Art 10 EUV 492/2011 for children in training and their caring parents - no SGB II exclusion of EU foreigners in mini-jobs
Other residence rights of children and caring parents that conflict with an exclusion from SGB II benefits can also arise from rights to continue training acquired by children of employees in accordance with Article 10 of Regulation (EU) 492/2011.
Guiding principle (editor)
1. Mini-job can save Hartz IV entitlement for EU citizens and the plaintiffs were not excluded from benefits under SGB II because they can rely on a right to freedom of movement under Article 10 of Regulation (EU) No. 492/2011 (see BSG of December 3, 2015 – B 4 AS 43/15 R).
Source: www.bsg.bund.de
Legal tip:
Likewise BSG, judgment of January 27, 2021 - B 14 AS 25/20 R
Note:
BSG: Minijob can save Hartz IV entitlement for EU citizens
A mini-job can also justify the Hartz IV entitlement of EU citizens who have come to Germany. The Federal Social Court decided this in two cases. This is particularly true when children go to school in Germany.
According to a court ruling, even marginal employment can justify the Hartz IV entitlement of EU citizens who have entered Germany. The Federal Social Court (BSG) decided on Wednesday in two cases that there is a right to unemployment benefit II even more if the children go to school in Germany and the parents, who are employed part-time or part-time, therefore have a right of residence. (AZ: B 14 AS 25/20 R and B 14 AS 42/19 R) The Kassel judges thus implemented the case law of the European Court of Justice. Since January of this year, the legal exclusion from Hartz IV benefits for EU citizens with children going to school in Germany has been abolished.
further: www.migazin.de
1.4 – BSG, judgment of 01/27/2021 – B 14 AS 35/19 R
Accommodation and heating needs – headboard principle
On the validity of the headboard principle when determining the recognized need for accommodation and heating if a relative of the beneficiary, who is excluded from benefits under SGB II, stays in the beneficiary's apartment at intervals of two weeks on weekends and occasionally during holiday periods.
Guidance (Editor)
1. In addition to simplifying administration, the headboard principle is used in particular to allocate needs to people who are not subject to any obligations under the rental agreement, such as often the children of a family.
2. It also serves to differentiate the needs of those entitled to benefits living in an apartment according to SGB II from the needs of other possible people who use the same apartment. It is not the meaning and purpose of Section 22 Paragraph 1 SGB II to enable economically capable relatives of a person receiving benefits under SGB II to live in their apartment free of charge.
3. A deviation from the headboard principle in favor of the plaintiff requires needs-related reasons. This could in particular be opposed by a claim by the daughter according to Section 27 SGB II.
Source: www.bsg.bund.de
Note:
Job centers may have to cover rent despite subsidized training
If the education of the child of a Hartz IV recipient is supported by the employment agency, the job center must not leave the mother out in the cold when it comes to taking over her entire rent. Even if the supported trainee continues to live in her mother's household but cannot pay the rent, in individual cases the job center may still be obliged to cover the full accommodation costs for reasons of hardship...
Source: www.evangelisch.de
and Federal Social Court: Those in need of help should not fall between the systems
In individual cases, the job center also has to pay parents accommodation costs for a child if the child is not entitled to Hartz IV benefits. The prerequisite is a special need and a special hardship, as the Federal Social Court (BSG) in Kassel decided on Wednesday. It emphasized that those in need of help should not fall between the systems - here Hartz IV and job promotion.
further: nuernberger-blatt.de
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 - State Social Court of Lower Saxony-Bremen, judgment of September 8, 2020 - L 7 AS 354/19 - The appeal is permitted
Guiding principle (Juris)
The insurance flat rate of 30.00 euros is not applicable for income from social benefits - here child benefit - in accordance with the decision of the BSG of July 17, 2014 (B 14 AS 25/13 - BSGE 116, 194) several times in one month to be deducted.
Source: www.rechtsprachung.niedersachsen.de
Legal tip:
a. Opinion LSG Berlin-Brandenburg, September 17, 2015 - L 31 AS 1571/15 - Consideration of back payment of child benefit as income; Multiple deduction of the insurance flat rate
2.2 – State Social Court of Saxony-Anhalt, judgment of June 24, 2020 – L 2 AS 832/17 – legally binding
Consideration of a “job ticket” obtained at a discount through the employer when offsetting income against SGB II benefits – income in monetary value – Section 2 Paragraph 6 Sentence 2 Alg II-V aF
Guiding principle (editor)
Job tickets subsidized by the employer are not to be taken into account as income in monetary terms and therefore as further income within the meaning of Section 11 Paragraph 1 SGB II old version.
Guiding principle (Juris)
1. On the question of whether the concept of income in monetary value in Section 11 Paragraph 1 Sentence 1 SGB II old version presupposes that the income can be sold for money and has a market value.
2. Section 2 Paragraph 6 Sentence 2 Alg II-V aF precludes the crediting of income in monetary terms even if the beneficiary has already had to spend more money to receive it than is taken into account in the standard requirement for the corresponding expenditure.
Source: socialcourtsability.de
2.3 – Hessian State Social Court, decision v. 12/15/2020 – L 6 AS 554/20 B ER
Request from the job center that the applicant apply for an early retirement pension from the statutory pension insurance.
Guidance (Editor)
The request of the beneficiary to apply for an early old-age pension (as well as the subsequent application by the benefit provider instead of the beneficiary in accordance with Section 5 Para. 3 Sentence 1 SGB II) is also in accordance with constitutional law.
Guiding principle (Juris)
On the interpretation of Section 6 Unfairness Ordinance
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision v. January 12, 2021 – L 14 AS 1694/20 B ER – legally binding
Basic security for job seekers - local responsibility of the basic security provider - residence requirement
The institution in whose territory the person entitled to benefits must take up residence in accordance with Section 12a Paragraphs 1 to 3 of the Residence Act is solely responsible for refugees or those entitled to asylum. Only there can the responsibility of a job center be established, taking into account the limited freedom of movement right.
Guiding principle (editor)
1. § 12 a AufenthG establishes a local responsibility of the service provider that deviates from § 36 para. 1 SGB II, not only when issuing a specific, individual residence requirement according to § 12 a para. 2 or 3 AufenthG, but also when it is present the general legal residence requirement of Section 12a Paragraph 1 Residence Act.
2. Even if there is a residence requirement in accordance with Section 12a Paragraph 1 of the Residence Act, the responsibility of the job center can only be established in the area in which the applicants have to reside.
Legal tip:
also LSG Berlin-Brandenburg, decision of June 26, 2017 - L 31 AS 618/17 B ER ; LSG Mecklenburg-Western Pomerania, judgment of September 21, 2020 - L 10 AS 373/9 18 - ; LSG Niedersachsen-Bremen, decision of March 5, 2018 – L 15 AS 32/18 B ER; Böttiger, in Eicher/Luik, SGB II, 4th edition 2017, § 36 Rn. 49c; Hlava, in Gagel, SGB II / SGB III, 79th EL September 2020, § 36 SGB II Rn. 35; cf. also LSG Hamburg, decision of May 8, 2017 - L 4 AS 114/17 B ER, contrary to LSG North Rhine-Westphalia, decision of March 17, 2017 - L 7 AS 228/17 B ER, decision of January 20, 2017 – L 19 AS 2381/16 B ER, decision of December 12, 2016 – L 7 AS 2184/16 B ER, L 7 AS 2185/16 B).
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, judgment of September 17, 2020 – L 14 AS 563/18
Integration into work - training/further training to become a physiotherapist - analogous application of SGB III - financial security for the third year of measures - binding effect of a legally binding judgment
Basic security for job seekers: Benefit for a vocational training measure - securing a living as a prerequisite for approval for a basic security recipient
Guiding principle (editor)
1. The opinion that the financing to be secured according to Section 180 Paragraph 4 Sentence 2 SGB III must also cover living expenses may apply to those entitled to benefits according to SGB III. However, the Senate sees no reason for a transfer to those entitled to benefits under SGB II - such as the plaintiff (also Berlin-Brandenburg State Social Court, decision of August 11, 2016 - L 25 AS 1611/16 B ER -; Berlin Social Court, decision of August 1st). November 2016 – S 137 AS 14835/16 ER).
2. For a recipient of basic security benefits for job seekers, when approving a further vocational training measure, it is not necessary to assume that securing the financing of living expenses in the last third of training is a prerequisite for approval.
Guiding principle (Juris)
1. Insofar as Section 180 Paragraph 4 Sentence 2 SGB III applies to employable persons entitled to benefits under SGB II, I do not have to extend the financial security to subsistence for the entire duration of the measure.
2. On the binding effect of a legally binding judgment that affirms the requirements for a claim to a further training measure in accordance with Section 16 Paragraph 1 Sentence 2 No. 4 SGB II in conjunction with Section 81 SGB III.
Source: socialcourtsability.de
2.6 – State Social Court of North Rhine-Westphalia, judgment of December 10, 2020 – L 7 AS 1634/18
To cover childcare costs
Guiding principle (editor)
1. The plaintiffs' claim to reimbursement of childcare costs does not follow from Section 21 (6) SGB II.
2. An atypical special situation, which enables the assumption of a need within the meaning of Section 21 Paragraph 6 SGB II, does not arise solely from the fact that the plaintiffs had to look after a particularly large number of children, because they were not due to duties outside the home - in particular one Employment – bound and were able to carry out the parenting tasks as a couple.
3. Covering childcare costs as moving costs in accordance with Section 22 Paragraph 6 Sentence 1 SGB II - possibly relevant for the moving days - is out of the question because the plaintiffs carried out the move with the help of a moving company and were not present during the move were, but went for a walk.
Source: socialcourtsability.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – Magdeburg Social Court, judgment of January 5, 2021 – S 32 AS 3077/16
Reasonable costs of accommodation and heating in the Harz district
Orientation aid (editor)
The concept for determining the appropriate expenses for accommodation and heating in the Harz district is coherent.
Source: socialcourtsability.de
3.2 – Munich Social Court, judgment of January 17, 2021 – S 46 AS 1930/19
Cancellation of the approval of unemployment benefit II due to pension receipt and the resulting reimbursement
Guidance (editor)
1. The question arises here as to whether a benefit recipient, or in particular the plaintiff, who receives a pension for the first time at the end of a month, should have known that this pension would be credited to unemployment benefit II retroactively to the beginning of the month.
2. The plaintiff did not need to know that. Her needs-based considerations, namely that the March pension must be used for the April rent, show that the plaintiff made very obvious considerations in the opposite direction. There is no accusation of guilt regarding the illegality of the original approval.
3. The disputed decision was therefore to be repealed.
Source: socialcourtsability.de
3.3 – Social Court Neuruppin, court decision v. January 21, 2021 – S 26 AS 77/20 and v. January 25, 2021 – S 26 AS 1127/19
Benefits as a subsidy – home ownership – basement room no living space
Guiding principle (editor)
The floor area of the basement must not be taken into account when determining the living space.
Guidance (editor)
1. ALG II had to be paid as a subsidy because the living space limit of 99 square meters, which is relevant here and increased by ten percent, does not exceed the building used by the plaintiff and her partner.
2. The basement space in question is not to be taken into account when determining the living space.
Source: socialcourtsability.de
3.4 – Social Court Neuruppin, court decision v. December 8, 2020 – S 26 AS 933/19
Cancellation and reclaiming ALG II illegal - income with repayment obligation
Guiding principle (editor)
Wages that are already burdened with an (effective) repayment obligation when received are not creditable income (cf. BSG judgment of June 17, 2010 - B 14 AS 46/09 R).
Source: socialcourtsability.de
3.5 – Duisburg Social Court, decision v. October 26, 2020 – S 38 AS 3218/20 ER
Interim legal protection - Unemployment benefit II - Accommodation and heating - Assurance that the accommodation costs for new accommodation will be covered - Necessity of moving due to attic apartment
Assurance that the accommodation costs for new accommodation will be covered in an expedited procedure for mother and child if the move is necessary, here is an excerpt from the attic
Guiding principle (editor)
1. In interim legal protection proceedings, a SGB II service provider cannot generally be required to provide an assurance within the meaning of Section 22 Paragraph 4 SGB II, but rather to provisionally take over the actual KdU.
2. In this case, as an exception, an assurance that the costs of accommodation and heating will be covered comes into consideration.
3. Moving to an apartment that is better equipped and is not in the attic is also understandable if the number of rooms is not increased, but the layout and the number of square meters are improved. In this respect, it can be assumed that a non-beneficiary with a small child will also move out of the attic and ensure that the child and mother have their own room by setting up furniture. The layout of the new apartment also allows the applicants to use it differently.
Source: socialcourtsability.de
4. Decisions of the state social courts on employment promotion law (SGB III)
4.1 – Berlin-Brandenburg State Social Court, judgment of November 5th, 2020 – L 14 AL 4/20
Enforcement - Order between service providers - Resolution at the meeting of providers - Responsibility for issuing objection notices - Limitation of time
Guiding principle (Juris)
1. The job center is responsible for issuing objection notices, even in the event of a transfer of tasks in accordance with Section 44 b Paragraph 4 SGB II.
2. Claims for reimbursement in accordance with Section 328 Paragraph 3 SGB III expire after 30 years.
3. Since the SGG - unlike the ZPO (§§ 732, 766, 767, 768, 771 - 774) - does not provide any types of action for administrative enforcement that are specifically aimed at enforcement law, legal protection must be provided using the general procedural instruments of the SGG within the scope of its general procedural principles are granted.
Source: socialcourtsability.de
4.2 – Berlin-Brandenburg State Social Court, judgment of November 26, 2020 – L 14 AL 20/20
Unemployment benefit – (false) cross-border commuter – contribution assessment limit
Guiding principle (Juris)
The German contribution assessment limit must also be applied when calculating unemployment benefits for cross-border commuters within the meaning of Regulation (EC) No. 883/2004.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Karlsruhe Social Court, court decision v. February 13, 2020 – S 12 SO 3012/19
After almost 40 years of marriage, even a 77-year-old husband's complete loss of libido in relation to his wife does not lead to the conclusion that the husband wants to separate from his wife permanently.
Guiding principle (editor)
1. The mere declaration that the partnership has been dissolved is not considered sufficient. A marriage-like partnership can be dissolved at any time without a legally regulated procedure. However, a sufficiently certain determination is only possible if the decision to terminate due to external circumstances is sufficiently clearly documented (LSG Baden-Württemberg, judgment of October 1, 2015 - L 7 SO 118/14).
It is sufficient if the circumstances characterizing the relationship between the spouses show that at least one of the spouses has the will to permanently separate from the other spouse by giving up their previous life partnership and this is sufficiently clearly documented by external circumstances (LSG Baden-Württemberg dated April 19, 2018 – L 7 SO 4981/14). Despite the different objectives, the concepts of living apart within the meaning of Section 27 Paragraph 2 Sentence 2 SGB XII and Section 1567 Paragraph 1 BGB are essentially the same. For example, living separately is also possible within the marital home. On the other hand, a (temporary) local separation - for professional reasons, for example - does not lead to living apart and thus to the abolition of the operational community.
Source: socialcourtsability.de
6. Decisions on asylum law and AsylbLG
6.1 - Mecklenburg-Western Pomerania State Social Court, decision of January 21, 2021 - L 9 AY 27/20 B ER
Matters under the Asylum Seekers Benefits Act
Guiding principle (Juris)
1. There are considerable concerns about the constitutionality of the levels of need regulated in Section 3a Paragraph 1 No. 2 Letter b and Section 3a Paragraph 2 No. 2 Letter b AsylbLG for adult beneficiaries without a partner who are accommodated in reception facilities, community accommodation or comparable accommodation are.
2. A constitutionally compliant interpretation of the norm requires that the actual and verifiable joint household management of the beneficiary with other people accommodated in the collective accommodation is assumed as an unwritten fact, for which the objective burden of proof (and in urgent proceedings the burden of proof) lies with the service provider. (Adherence to the Senate's resolution of May 11, 2020 - L 9 AY 22/19 B ER)
Source: www.landesrecht-mv.de
6.2 - SG Oldenburg, decision of December 2nd, 2020 - S 26 AY 44/20 ER
Right to the granting of a humane subsistence minimum - interim order § 86b para. 2 sentence 2 SGG - weighing up the consequences - guarantee of legal protection Article 19 para. 4 GG
Guiding principle (Juris)
Due to significant constitutional concerns about the authorization of Section 1a Paragraph 7 AsylbLG to intervene in the constitutionally guaranteed right to the granting of a humane minimum subsistence level (from Article 1 in conjunction with Article 20 Paragraph 1 GG), which was included by the legislature in Sections 3, 3a AsylbLG has been designed, the service provider is obliged to provide benefits in accordance with Sections 3, 3a AsylbLG by way of an interim order based on an assessment of the consequences.
Source: www.rechtsprachung.niedersachsen.de
7. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
7.1 – Higher Administrative Court for the State of North Rhine-Westphalia v. January 21, 2021 – Ref. 11 A 1564/20.A, 11 A 2982/20.A
Persons recognized as entitled to protection in Greece are currently not allowed to be returned
The OVG Münster has decided that asylum applications from persons recognized as being entitled to protection in Greece may not, in principle, be rejected as inadmissible because, at least at present - subject to special circumstances in the individual case - there is generally a serious risk that, if they return there, they will be deprived of their most basic needs (“bed “, bread, soap”) cannot be satisfied for a longer period of time.
continue on Juris
7.2 - Crediting of income in the AsylbLG, SGB II and SGB XII (January 2021) Note from Claudius Voigt
The following points in particular have been updated:
· New standard requirements records
· Increased allowance of 250 euros for reimbursement of expenses from voluntary work in SGB II, SGB XII and AsylbLG
· Increased allowance of 250 euros for pocket money for federal voluntary service or voluntary social year in SGB II and SGB XII
· Higher allowance for holiday jobs in SGB II (2,400 euros per year)
· Freedom from crediting Corona bridging aid
Source: www.einwanderer.net
7.3 – Income allowances for 2021 for advice and legal aid are falling!
A contribution from RA Helge Hildebrandt, Kiel
continue here: Sozialberatung-kiel.de
7.4 – BMAS @BMAS_Bund
50 million masks for people in #basicsecurity:
10 FFP2 masks can be picked up free of charge from pharmacies with a letter.
Technicians
Digital devices for children with basic security:
In order to participate in distance learning, job centers will in future cover the costs for devices that schools provide.
Source: twitter.com
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
