1. Decisions of the state social courts on basic security for job seekers (SGB II)
1.1 – LSG Bayern, decision by. 01/29/2021 – L 7 AS 700/20 B ER
The applicant for benefits under SGB II bears the objective burden of proof as to the number of people living in the household.
Guiding principles (Juris)
1. The applicant for basic security benefits according to SGB II bears the objective burden of proof for the number of people living in the household and thus for the extent of the actual expenses for accommodation and heating to be taken into account as needs. (Rn. 16) (editorial principle)
2. In accordance with the established jurisprudence of the BSG, the costs of accommodation are generally to be divided proportionately per person, regardless of age and intensity of use, if those in need of assistance use accommodation together with other people, in particular with other family members. (Rn. 14) (editorial principle)
3. A temporary spatial separation from the place of residence or usual place of residence, for example due to a stay abroad, does not prevent the maintenance of an existing place of residence, provided that the stay is limited in time and there is the possibility of returning to the apartment at any time. (Rn. 14) (editorial principle)
4. The court must evaluate the probative value of an oath statement in accordance with Section 202 SGG in conjunction with Section 294 ZPO within the scope of the free assessment of evidence in accordance with Section 128 SGG. In individual cases, the court's assessment of evidence may show that a certain fact has not been made credible by an oath, for example in view of other evidence present. (Rn. 15) (editorial principle)
5. The decision of the BVerfG of May 12, 2005, 1 BvR 569/05, does not automatically require the issuance of a corresponding regulatory order if there is a credible claim to an order. The assessment of the reason for the order must not be carried out schematically. As part of an evaluation, when checking whether the reason for the order exists, it must be taken into account what negative financial, social, health or other consequences a loss of the specific apartment would have for those affected. (Nos. 23 and 24) (editorial principle)
Source: www.gesetze-bayern.de
1.2 – LSG NRW, decision of. 01/27/2021 – L 20 AY 1/21 B ER
Asylum seeker benefits after church asylum
The LSG Essen has decided that doubts as to whether an asylum seeker has continuously announced his or her whereabouts preclude a claim to so-called analogue benefits in accordance with Section 2 AsylbLG.
Short version:
The blanket assertion that he would be denied benefits that would ensure his existence does not justify any urgency, especially since there is no obvious entitlement. § 2 AsylbLG stipulates that SGB
The applicant did not make the latter credible. Based on the findings of the expedited proceedings, it is likely that he improperly extended his stay in the federal territory by not continuously knowing his whereabouts during his church asylum. Taking into account the principle of proportionality, not disclosing the current address is - comparable to going into hiding - (even regardless of the use of church asylum) and is typically capable of prolonging the stay in the federal territory in an abusive manner if the immigration authorities do not know the whereabouts of the person concerned for a longer period of time be given.
Further investigations are reserved for the ongoing legal proceedings.
Source: Press release from LSG Essen v. February 23, 2021
Note:
The Senate did not have to decide whether and, if so, under what conditions the use of church asylum constitutes abusive behavior (see Bavarian LSG, judgment of May 28, 2020 - L 19 AY 38/18, LSG Lower Saxony-Bremen, decision of April 27, 2020 - L 8 AY 20/19 B ER, LSG Mecklenburg-Western Pomerania, decision of September 13, 2020 - L 9 AY 9/20 B ER, and Hessisches LSG, decision of June 4, 2020 - L 4 AY 5/20 B HE).
1.3 – LSG NRW decision of. February 23, 2021 – L 21 AS 123/21 B ER
Section 22 Paragraph 1 Sentence 1 SGB II in conjunction with Section 86b Paragraph 2 SGG
Guidance (Willy Voigt)
1. No urgent legal protection if the apartment has not yet been terminated.
2. Even if rent arrears have already accrued as a result of not taking over the job center and the landlord has warned of the outstanding rent, this does not give the right to expedited proceedings.
3. The termination of the accommodation must be given.
4. The possibility of extraordinary termination and, moreover, ordinary termination is not enough.
5. Furthermore, the apartment is not suitable and there are considerable doubts that the rented apartment can be kept permanently.
6. There are no children living in the household and there are no health restrictions.
1.4 – LSG Berlin-Brandenburg, decision of. 02/08/2021 – L 31 AS 1562/20 B ER
Rejection notice – withdrawal of provisional approval – interim legal protection – settlement in another way – suspensive effect
Guiding principle (Juris)
1. Section 41a Paragraph 2 Sentence 4 SGB II regulates the case that corrections become necessary during the ongoing approval period.
2. A withdrawal of the provisional decision in accordance with Section 41a Paragraph 2 Sentence 4 SGB II is not necessary in addition to a final rejection.
3. The final rejection completes the provisional approval in accordance with Section 39 Para. 2 SGB X.
Source: www.berlin.de
2. Decisions of the social courts on basic security for job seekers (SGB II)
2.1 – Magdeburg Social Court, judgment of January 27, 2021 (S 16 AS 1814/17):
Principle Dr.
Manfred Hammel There is no intentional reduction of funds within the meaning of Section 31 Paragraph 2 No. 1 SGB II if a recipient of Alg II receives holiday compensation from her former employer in accordance with Section 7 Paragraph 4 BUrlG in an amount of over EUR 5,000 ,- and immediately uses EUR 4,100 of this sum to pay off private debts.
A job center can only assert a claim for compensation due to socially unfavorable behavior in accordance with Section 34 SGB II.
Guiding Principle Attorney Michael Loewy
If a benefit recipient pays off private debts from his former employer with a severance payment received as part of the benefit, this does not justify a sanction according to Section 31 Paragraph 2 Item. 1 SGB II. The aforementioned norm presupposes the targeted desire (Dolus directus of the 1st degree) to bring about the reduction in assets for the purpose of achieving performance, which is missing in the present case. However, a reduction in assets that only incidentally leads to the beneficiary receiving benefits earlier or in higher amounts is not sufficient.
Source: RA M. Loewy
2.2 – SG Neubrandenburg, decision of. 02/09/2021 – S11 AS 489/20 ER
Purchase costs of a tablet as school supplies through the JobCenter - taking shipping costs into account
Through the interim legal protection procedure, JobCenter is temporarily obliged to provide the siblings with a tablet for shared use or to cover the costs of purchasing a tablet plus shipping costs of a maximum of €170.00.
Even if the recommendation to use the digital learning programs is only made by the school in addition to the tasks issued in copies, the utilization of this learning opportunity is also necessary to realize the child's right to education and equal opportunities.
Guiding principle (editor)
1. The need asserted by the applicants (purchase of a tablet or internet-capable device for school lessons) fundamentally represents an additional need that must be recognized, which is now subject to Section 21 Paragraph 6 SGB II.
2. Under the current circumstances of the pandemic, the standard needs of students are no longer accurately recorded in a structurally realistic manner (see LSG North Rhine-Westphalia in the decision of May 22, 2020, L 7 AS 719/20 B ER and Thuringian State Social Court, decision of 08.01.2021,L 9 AS 862/20 B ER). This opens up the granting of benefits via Section 21 Paragraph 6 SGB II.
3. Even if the recommendation to use the digital learning programs is only made by the school in addition to the tasks issued in copies, the exploitation of this learning opportunity is also necessary to realize the child's right to education and equal opportunities.
4. Since face-to-face teaching is not offered, in order to ensure comparable educational opportunities, applicants must have the same opportunities to access the learning materials recommended by the school as well-off students. The reference to foregoing the use of the digital learning programs recommended by the school and only using the exercise books and copies provided is unreasonable in view of the school closures and the associated limited access to education.
5. If the respondent does not provide any benefits in the form of benefits in kind, the costs of the respondent's own procurement must be reimbursed.
6. It should also be taken into account that due to the closure of retail stores, only online offers can currently be used, so any shipping costs must also be taken into account.
7. Due to its size, it is not possible to use the learning programs for elementary school students on a smartphone on a meaningful, long-term basis, which is why the coveted tablet must be purchased. However, since this is not a digital lesson, but simply an additional use to the other tasks set in paper form, the alternating use of a device by the two siblings is possible and sufficient.
2.3 – SG Duisburg, decision by. January 20, 2021 – S 61 AS 37/21 ER
Digital internet-capable device as an additional hardship requirement from the job center, here €150.
Guiding principle (editor)
The job center must grant students an internet-capable device as an additional hardship requirement in accordance with Section 21 Paragraph 6 SGB II.
2.4 – SG Berlin, decision by. December 30, 2020 – S 138 AS 7816/20 ER
Self-employed, undeclared sex workers are entitled to ALG II
Granting interim order for self-employed, undeclared sex worker (orientation aid RAin Kleideiter, Berlin)
The applicant is a Romanian citizen and was neither registered under the ProstSchG nor was the activity registered with the tax office. The court determined that this was not important in the present proceedings and awarded the applicant benefits in accordance with SGB II from the time the application was received by the court (orientation aid RAin Kleideiter).
2.5 – Schleswig Social Court, judgment of February 2, 2021 (S 1 AS 111/17):
Principle Dr.
Manfred Hammel The central prerequisite for the job center's decision in the matter of revoking the granting of Alg II according to Section 40 Paragraph 2 No. 3 SGB II in conjunction with Section 330 Paragraph 3 SGB III and Section 48 Paragraph 1 Sentence 2 No. 3 SGB However, it was only over a year later that this social authority revoked the approval of benefits in accordance with Sections 19 ff. SGB II, which were provided immediately after the employment income was received, and demanded the corresponding funds back.
Given these circumstances, a corresponding decision would have been possible at a much earlier point in time, because the job center already had the employment contract and thus reliable information about the amount of expected wage payments immediately after taking up this position.
There was sufficient knowledge of the facts here.
The exclusion period according to Section 45 Paragraph 4 Sentence 2 SGB X can neither be interrupted nor extended.
In the case of an annulment decision made on the basis of Section 48 Paragraph 1 Sentence 2 No. 3 SGB according to Section 24 Paragraph 1 SGB X not required.
If a job center allows the one-year deadline in accordance with Section 45, Paragraph 4, Sentence 2 of SGB to set in motion. This is the only way to ensure that the protective provision resulting from Section 45, Paragraph 4, Sentence 2, SGB
Note:
Attorney Dirk Audörsch: If the authority takes action too late...
The social court in Schleswig decided in its judgment of February 2, 2021 (S 1 AS 111/17) that for the start of the one-year period in accordance with Section 45 Paragraph 4 Sentence 2 SGB so that the one-year period begins in any case when the authority is of the opinion that the existing facts are sufficient for a withdrawal (...) (...) If an authority therefore allows the one-year period to elapse, even though it has determined all the facts that it believes are necessary it is no longer possible for her to set a new deadline by hearing the benefit recipient. This is the only way to ensure that the protective provision of Section 45 Paragraph 4 Sentence 2 SGB X is not undermined with the help of Section 24 SGB X.
Source: westkuestenanwalt.com
2.6 - SG Berlin, judgment of December 3, 2020 - S 128 AS 7217/19
“Split billing” is also possible for self-employed income – unclear consequences when crediting “Corona emergency aid” Note from attorney Kay Füßlein on this
As is well known, approval for fluctuating income or income from self-employment takes place in two stages:
First, a provisional approval is given with an (approximate) estimate of income
then the final approval follows (with cancellation and reimbursement)
How the income is calculated upon final approval is regulated in Section 41a SGB II and the basic rule here is: put everything in one pot and divide it by the number of months in the approval period (usually as income: 6 months).
However, there is an important exception in Section 41a Paragraph 4 SGB II, which stipulates that NO average income is to be calculated in the months in which a particularly high (= needs-covering) income is earned. The term “peak billing” is used for this method and may be much more advantageous and may result in lower reimbursements or a higher entitlement to benefits in other months.
For dependent employees, it is quite clear when this is the case: if income > needs, the specific income in each month must be taken into account in the final approval.
However, it is exciting when self-employed people receive a particularly high income in one month. Does this also apply?
Yes, says the Berlin-Brandenburg State Social Court (judgment of May 11, 2020 - L 18 AS 732/18) - in a quite controversial decision. According to this, it is also sufficient if the income in one month means that the entitlement to benefits no longer applies.
However, the question is undisputed in very clear cases, for example if the total income is already 6 months higher than the requirement). Here the SG Berlin ruled that a monthly “peak billing” must take place (SG Berlin judgment of December 3, 2020 - S 128 AS 7217/19).
This means that even for self-employed benefit recipients, NO average income is formed if their income in one month means that they are no longer entitled to benefits.
What is interesting in this context (and so far unresolved) is the question of how Corona emergency aid is to be taken into account. In many cases, these are likely to result in the entitlement to benefits being no longer applicable in one month and then actually lead to a “peak bill”. Given the expected highly fluctuating income, this consideration is likely to be much more advantageous than the formation and crediting of the “Corona” aid over the entire approval period.
continue with attorney Kay Füßlein
Note:
a. View: LSG Berlin-Brandenburg, May 11, 2020 – L 18 AS 732/18
3. Decisions of the state social courts on employment promotion law (SGB III)
3.1 - State Social Court of Lower Saxony-Bremen, judgment of January 25, 2021 - L 11 AL 15/19
Unemployed people must immediately report any trial work they have started to the Federal Employment Agency.
An employment relationship relevant to benefits law does not require remuneration.
Guiding principle (editor)
Even a trial employment relationship is employment within the meaning of Section 138 Paragraph 3 SGB III, even if no wages are paid for this.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the state social courts and social courts on social assistance (SGB XII)
4.1 - SG Rostock 8th Chamber, judgment of February 9th, 2021 - S 8 SO 24/20
Basic security in old age and in the event of reduced earning capacity according to SGB XII
Guiding principle (Juris)
The application for the granting of basic security benefits in old age and in the event of reduced earning capacity from Sections 19 Paragraph 2 Sentence 1, 41 Paragraphs 1 and 3 SGB XII is effective regardless of the fact that a provisional decision according to Section 44a Paragraph. 1 SGB is only received by the social welfare provider after the end of the application month (contrary to circular no. 13/2017 dated April 27, 2017 of the Ministry for Social Affairs, Integration and Equality Mecklenburg-Western Pomerania).
4.2 – SG Düsseldorf, decision of. 01/25/2021 – S 28 SO 481/20 ER
Social assistance - basic security in old age and in the event of reduced earning capacity - exclusion of benefits for foreigners if they do not have the right of residence - return exemption if they have been in the federal territory for at least five years - options for providing proof
Romanian citizens are entitled to basic security according to SGB
Guiding principle (editor)
According to the wording of the law, registration is required for the start of the five-year period. However, the duration of the stay can also be proven and made credible in other ways than through registration (LSG Berlin-Brandenburg, decision of June 6, 2017 - L 15 SO 112/17 B ER; LSG Hamburg, decision of June 20, 2019 – L 4 AS 34/19 B ER; SG Düsseldorf, decision of December 15, 2020 – S 3 AS 3354/20 ER).
Note:
a. Opinion LSG Schleswig-Holstein, decision of May 4, 2018 – L 6 AS 59/18 B ER; leaving open LSG Saxony-Anhalt, decision of February 7, 2019 - L 2 AS 860/18 B ER
5. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
5.1 - Note on: BSG 4th Senate, judgment of October 14, 2020 - B 4 AS 14/20 R
Author: Dr.
Stefan Meißner Source: juris
Standards: § 40 SGB 2, § 48 SGB 10, § 11a SGB 2, § 22 SGB 2, § 11b SGB 2, § 50 SGB 10, § 11 SGB 2
Reference: jurisPR-SozR 4/2021 Note 1
Editor: Prof. Dr.
Thomas Voelzke, Vice President of the BSG Jutta Siefert, Ri'inBSG
Citation suggestion: Meißner, jurisPR-SozR 4/2021 Note 1 Citation suggestion
Consideration of an immediate bonus after switching electricity providers as income
Guidance sentence for the note
The immediate bonus paid by the electricity supplier to the service recipient for concluding a contract with them represents income to be taken into account.
continue on Juris
5.2 Contergan pension cannot be taken into account for SGB II benefits - press release on LSG NRW, judgment of 12/03/2020 – L 6 AS 1651/17 – Revision approved
The receipt of SGB II benefits by recipients of a pension under the ContStifG is not prevented by either their current pension benefit or a self-occupied condominium purchased with funds from this pension.
The plaintiff is entitled (among other things) to an additional requirement in accordance with Section 21 Paragraph 7 SGB II for her electricity costs that go beyond the share included in the standard requirement. You do not have to cover this from your own resources. She does have (significant) monthly payments from the Contergan pension. However, in accordance with Section 18 Paragraph 1 ContStifG, these benefits were not taken into account when calculating SGB II benefits. They essentially have a compensation function for those affected, which primarily aims to compensate for lost opportunities in life. As a result, the thalidomide pension (including the annual special payment) is neither intended nor suitable for covering one's living expenses and therefore does not have to be used to cover any additional needs that secure one's existence.
The plaintiff also does not have to use her condominium - regardless of its size. The exploitation of the property represents a particular hardship for her within the meaning of Section 12 Paragraph 3 SGB II, as this would require a special sacrifice from her that goes far beyond that which the exploitation of a property that forms the center of the person's life , means anyway. The plaintiff also proved that the apartment was at least largely purchased using Contergan pension funds.
The LSG allowed the appeal.
Source: Press release from LSG Essen v. February 22, 2021
5.3 – OVG Bremen, decision of December 15, 2020 (1 B 432/20):
Principle Dr.
Manfred Hammel On the obligation of a security and regulatory authority to accommodate a person with behavioral problems “without a permanent address” under homeless law.
An “inability to accommodate” in a homeless shelter resulting from socially harmful behavior by a homeless person does not affect the fundamental obligation of the authority responsible for averting danger, provided there is no case of acute danger to oneself or others. This would require the initiation of measures under the accommodation law.
Even if a homeless person stays “without a permanent address” in a large metropolitan area, it cannot be assumed that there is an unwillingness to be accommodated if this homeless person does not (regularly) appear at the “Central Housing Office” and there is no evidence to suggest that this applicant temporarily has accommodation or is permanently in another location.
Editor's note:
Due to maintenance work on the server, the www.socialgerichtsbaren.de currently not accessible.
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
