1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Berlin-Brandenburg State Social Court, Judgment of 13 January 2021 – L 14 AS 1933/17
Benefits to secure livelihood – final determination – average income – self-employment – approval period – distribution period – reduction – deregistration
No waiver or withdrawal of the benefit application if income is particularly high in individual months
Guiding principle (Editor)
1. It is generally not possible to shorten the approval period by deregistering oneself.
2. Just as the recipient cannot "deregister" during an ongoing benefit period in order to have an inheritance received become protected assets (instead of countable income) (cf. State Social Court – LSG – Berlin-Brandenburg, judgment of November 16, 2010 – L 18 AS 1826/08), a "deregistration" is not possible in this case to achieve a disregard of the (high) income received.
3. Section 3 paragraph 1 sentence 3 of the Regulation on Unemployment Benefit II (Alg II-V) is not applicable to cases in which – as here – gainful employment is carried out throughout the entire benefit period, but income is only generated in individual months (LSG Saxony-Anhalt, decision of March 26, 2014 – L 2 AS 720/13 NZB) or in which income is particularly high in individual months.
Source: socialcourtsability.de
Note:
Legal principle (Juris)
The legally prescribed duration of the approval period in the sense of a distribution period cannot be shortened by "deregistration" from receiving benefits.
Legal tip:
a. Opinion: Social Court Berlin, judgment of July 29, 2013 – S 197 AS 15266/10 – It is generally possible to shorten the benefit period by deregistering oneself. Deregistration, which is not regulated in the German Social Code, Book II (SGB II), is to be understood as a waiver (§ 46 para. 1 SGB I) of the already granted entitlement to unemployment benefit II.
1.2 – State Social Court of Saxony-Anhalt, Judgment of 25 November 2020 – L 4 AS 139/19
repeated obligation of the plaintiff to submit an application for early retirement pension – no hearing
Principle (Juris)
1. There is no general duty of the court to work towards or enable the elimination of procedural and formal errors in the administrative procedure of an authority (BSG, Judgment of 26 July 2016 – B 4 AS 47/15 R -, BSGE 122, 25-34).
2. A stay of proceedings to allow for a subsequent hearing lacks the necessary expediency in terms of procedural concentration if the beneficiary is now receiving a standard old-age pension.
Source: socialcourtsability.de
1.3 – North Rhine-Westphalia State Social Court, Judgment of 03.12.2020 – L 6 AS 1651/17 – Appeal allowed
Regarding the question of whether the Contergan pension can be credited as a third-party benefit towards the additional needs arising from Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) – The question of whether and under what conditions third-party benefits must be taken into account when determining special needs according to Section 21 Paragraph 6 of the SGB II, and to which savings options affected individuals can be referred, has not yet been clarified by the highest court
Guiding principle (Editor):
The Contergan pension cannot be credited as a third-party benefit towards the additional needs arising from Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) – in this case, the additional needs for the electricity costs incurred for the permanent use of electrical appliances in one's own apartment.
Guidance (Editor)
1. The condominium does not constitute assets that would preclude eligibility for assistance, as its sale would constitute undue hardship (§ 12 para. 3 no. 6 SGB II). This follows from the fact that the apartment was largely acquired using funds from the thalidomide pension and the compensatory levy. In this respect, the legal principle from § 11a SGB II must be applied.
2. The fundamental legislative decision to leave compensation payments within the meaning of Section 11a of the German Social Code, Book II (SGB II) or under the ContStifG (Act on the Compensation of Victims of National Socialist Persecution) with the affected individuals and not to require them to cover their basic needs with these payments is not contradicted by Section 21 Paragraph 6 of the SGB II. This is because even additional needs exceeding the standard allowance within the meaning of Section 21 Paragraph 6 of the SGB II are among the subsistence-level benefits intended to ensure a minimum standard of living for the beneficiaries concerned.
3. In addition to the additional needs allowance pursuant to Section 21 Paragraph 7 of the German Social Code, Book II (SGB II), an additional needs allowance for electricity costs exceeding the portion included in the standard allowance (amounting to EUR 26.80) must also be considered, namely when the increased electricity costs are unavoidable due to the specific circumstances. In such a case, and provided the other requirements are met, an additional needs allowance for electricity consumption may be considered pursuant to Section 21 Paragraph 6 of the SGB II (in the version applicable here since June 3, 2010).
4. These conditions are met here. The plaintiff is dependent on the continuous use of electrical appliances for her daily needs, appliances which would not be required, or at least not to this extent, under average, cost-effective household management.
5. Due to her physical limitations, she needs to use not only a washing machine, as is usual in normal households, but also a tumble dryer for laundry. She cannot be expected to dry her laundry manually on a clothes rack because she is physically unable to perform the necessary tasks. Likewise, in the Senate's opinion, it is unreasonable to expect her to permanently employ help for this purpose.
6. Furthermore, the plaintiff requires a freezer to freeze the food prepared for her by her assistant. She also requires a dishwasher to clean the dishes, which she cannot reasonably be expected to wash manually in the sink with the necessary frequency.
7. The resulting additional electricity costs, which the Senate is convinced are also significantly higher than the average need, are unavoidable within the meaning of Section 21 Paragraph 6 (Sentence 2) of the German Social Code, Book II (SGB II), because they cannot be covered by third-party contributions or by taking into account the plaintiff's potential savings. Furthermore, there are no third-party contributions that the plaintiff would have to use to cover these costs. In particular, they do not arise from the benefits provided under the ContStifG (Contribution Foundation Act).
Source: socialcourtsability.de
2. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
2.1 – Hessian State Social Court, Judgment of 18 December 2020 – L 7 AL 29/18 – legally binding
Granting of a start-up subsidy – No entitlement to a start-up subsidy if there is no remaining entitlement to unemployment benefits
Principle (Editor):
The commencement of self-employment as an actual event in real life cannot be retrospectively brought forward (see also Hamburg Higher Social Court, judgment of November 7, 2018 – L 2 AL 5/18). Likewise, it cannot be fictitiously assumed that the plaintiff still had a remaining entitlement to unemployment benefits of at least 150 days when starting his business. In this case, the consequences of any potential error in advice can only be remedied by way of damages.
Source: socialcourtsability.de
3. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
3.1 – Rhineland-Palatinate State Social Court, Judgment of 28 January 2021 – L 1 SO 71/19
No succession of functions in the area of integration assistance
Principle (Juris)
: The Act to Strengthen the Participation and Self-Determination of People with Disabilities (Federal Participation Act – BTHG) structurally changed integration assistance. This precludes the assumption of a functional succession on the part of the responsible bodies.
Source: socialcourtsability.de
3.2 – Munich Social Court, decision of 03.02.2021 – S 46 SO 29/21 ER
Social assistance does not cover the costs of FFP2 protective masks
Guiding principle (Editor)
1. The applicant must pay for the FFP2 masks from the standard allowance.
2. There is no entitlement to a higher standard rate setting pursuant to Section 27a Paragraph 4 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII), because the additional need for FFP2 masks does not exceed average needs to a significant extent and, moreover, the additional expenses can be offset by reduced expenditures in other areas of need.
3. There is also no entitlement under Section 73 of the German Social Code, Book XII (SGB XII).
Source: socialcourtsability.de
Legal tip:
See regarding the German Social Code, Book II (SGB II): Social Court Karlsruhe, decision of February 11, 2021 – S 12 AS 213/21 ER – Hartz IV additional needs allowance of €129 per calendar month for FFP2 masks – 20 FFP2 masks per week for Hartz IV recipients
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – Lower Saxony-Bremen State Social Court – Decision of 11 February 2021 – Case No.: L 8 AY 76/20 B ER
Legal provisions: Sections 3, 3a AsylbLG, Section 2 AsylbLG – Keywords: Roma, Kosovo, stateless, submission of documents, passport requirement, non-abusive extension of stay, standard needs level 2b, Hildesheim, Senkingstraße 10 a
Source: Attorney Sven Adam
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Child benefit applications from EU citizens
Many advice centers have observed a significantly stricter practice by family benefits offices in recent months regarding the review of child benefit claims by EU citizens. This is partly due to a change in German law in the summer of 2019, which, in our opinion, is clearly contrary to EU law. Furthermore, the family benefits offices (possibly due to an unpublished directive?) have considerably tightened the requirements regarding the number and type of documents that EU citizens must submit to verify their child benefit claims. Many of the requested documents are completely irrelevant to the assessment of child benefit entitlement (e.g., kindergarten certificates or proof of payment of broadcasting fees). Moreover, these requirements mean that EU citizens can hardly enforce their child benefit claims in practice, or that processing takes months or even years.
A sample letter from a family benefits office can be found here: www.ggua.de
5.2 – Entitlement to medical masks under the Asylum Seekers' Benefits Act (AsylbLG)
The Rhineland-Palatinate Ministry of Integration has published a circular explaining the entitlement to medical masks for those receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG). The legal interpretations presented therein are applicable to all other federal states, as the AsylbLG is federal law and the obligation to wear medical masks on public transport, in shops, etc., generally applies in all federal states.
The letter states the following:
– The costs for medical masks are not included in the standard rates of basic benefits according to §3/3a AsylbLG (Asylum Seekers' Benefits Act) or the analogous benefits according to §2 AsylbLG. They must therefore be provided additionally by the social welfare office.
– For recipients of basic benefits, the legal basis is §6 AsylbLG; for recipients of analogous benefits, the legal basis is §73 SGB XII.
More information: www.ggua.de
Sa adds:
Since the beginning of February, recipients of Hartz IV benefits have also been entitled to free FFP2 masks. However, recipients of social assistance and asylum seekers are not. Marje Mülder explains why this is an unconstitutional inequality.
Continue reading: twitter.com
5.3 – Payment by a fraud victim to a marriage swindler is not socially unjust – Baden-Württemberg State Social Court, Judgment of 20 October 2020 – L 9 AS 98/18
The Stuttgart Higher Social Court (LSG Stuttgart) has overturned the decision of the job center to claim compensation from a Hartz IV recipient who paid more than €25,000 to a romance scam artist and was thereby left destitute.
Summary:
A claim for compensation under Section 34 Paragraph 1 of the German Social Code, Book II (SGB II) requires socially unacceptable behavior. However, K did not behave in a socially unacceptable manner. This only applies to the intentional creation of a need for assistance. It is generally not the responsibility of state authorities to examine whether the need for assistance arose in a comprehensible, naive, reckless, or morally reprehensible way. Rather, the line is only drawn where assets are causally wasted for the purpose of creating the need for assistance. There is no evidence of this. Instead, K himself appears to have been the victim of a crime. Even if K should have been suspicious and could easily have recognized M's scripted approach through internet research, K was not the only one who fell for it. It is characteristic of fraud victims that their behavior is objectively incomprehensible to outsiders and in retrospect. However, this does not mean that the behavior should be considered socially unacceptable. Furthermore, the only suitable subject of a fundamental decision under Section 34 of the German Social Code, Book II (SGB II), could be a declaratory administrative act regarding the social unacceptability of the conduct relevant to the claim for compensation. The job center was therefore not authorized to establish, in advance and definitively, liability for compensation in principle.
The judgment is not legally binding; the job center can appeal the decision to the Federal Social Court.
Legal Notice:
According to Section 34 Paragraph 1 of the German Social Code, Book II (SGB II), in the version applicable from August 1, 2016, and relevant here, anyone who, after reaching the age of 18, intentionally or through gross negligence creates the conditions for receiving benefits under the SGB II for themselves or for persons living with them in a household receiving benefits, without good cause, is obligated to reimburse the resulting monetary or in-kind benefits. Creating the conditions also includes increasing, maintaining, or failing to reduce the need for assistance. The claim for reimbursement also includes social security contributions paid. A claim for reimbursement should be waived if it would constitute undue hardship.
Source: Press release from the Stuttgart State Social Court dated February 15, 2021
5.4 – P-Account 2.0? – An overview of the key changes introduced by the Act on the Further Development of the Law on the Protection of Attachment Accounts (PkoFoG)
Continue on Juris
5.5 – Refugees: Federal government does not know if sanctions are effective against asylum seekers
Read more: www.sueddeutsche.de
5.6 – PM: Lower Saxony-Bremen State Social Court strengthens the rights of Roma refugees and all single residents of the housing complex at Senkingstraße 10a in Hildesheim
Press release dated February 15, 2021, regarding two decisions of the Lower Saxony-Bremen State Social Court dated February 4, 2021 and February 11, 2021
The Lower Saxony-Bremen State Social Court (LSG) has significantly strengthened the rights of Roma refugees from Kosovo in two expedited proceedings (case numbers: L 8 AY 118/20 B ER and L 8 AY 76/20 B ER) within a single week. The court ordered the Hildesheim district to grant the applicants considerably higher subsistence benefits under the Asylum Seekers' Benefits Act, based on fundamental considerations. These decisions also affect the entitlements of all residents of the housing complex at Senkingstraße 10a in Hildesheim.
Continued with attorney Sven Adam
Editor's note: Due to server maintenance, the website www.sozialgerichtsbarkeit.de currently unavailable.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
