1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on employment promotion law (SGB III)
1.1 – BSG, Judgment of 04.03.2021 – B 4 AS 60/20 R
Basic income support for job seekers – integration services – taking up a paid employment opportunity – reimbursement of travel expenses from the placement budget – no eligibility for funding due to lack of compulsory insurance employment as defined by the regulation
Guiding principle (Editor):
1. Refusal to cover travel expenses for taking up the job opportunity is lawful.
2. Section 45 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III aF), as the legal basis for entitlement, expressly stipulates that benefits from the placement budget can be provided for initiating or taking up employment that is subject to compulsory insurance, but not employment that is subject to social security contributions. This refers to the regulations on compulsory insurance in Sections 24 et seq. of the SGB III, as is also evident from the legislative materials.
Source: www.bsg.bund.de
1.2 – BSG, Judgment of 04.03.2021 – B 4 AS 59/20 R
Basic income support for job seekers – start-up allowance – employment subject to social security contributions
Guiding principle (Editor)
1. Rejection of start-up funding for taking up a job opportunity in the remuneration variant.
2. The German Social Code, Book II (SGB II), fundamentally distinguishes between work opportunities on the one hand and gainful employment on the general labor market on the other. This systematic separation would be undermined if a work opportunity were simultaneously considered gainful employment for integration into the general labor market and could lead to (further) support.
3. The eligibility requirements for the start-up grant must relate directly to the specific employment intended, as is clear from the wording of the law ("upon commencement"). Therefore, providing the start-up grant as an "intermediate step" for integration into subsequent employment on the general labor market is also not permissible.
Source: www.bsg.bund.de
1.3 – BSG, Judgment of 04.03.2021 – B 11 AL 5/20 R
Reimbursement of unduly paid benefits – limitation periods – administrative act
Guidance (Editor)
1. Section 50 Paragraph 4 Sentence 1 of the German Social Code, Book X (SGB X) links the commencement of the limitation period for claims by a social security institution for reimbursement of wrongly provided benefits with a written administrative act within the meaning of Section 50 Paragraph 3 of the SGB X that specifically establishes the reimbursement claim and its unappealability.
2. Section 52 of the German Social Code, Book X (SGB X), which remains unaffected according to Section 50, Paragraph 4, Sentence 3 of the SGB X, does not provide for a different limitation period. The 30-year limitation period applies only to the issuance of an administrative act within the meaning of Section 52, Paragraph 1 of the SGB X. Section 52, Paragraph 1 of the SGB X presupposes that a limitation period has already begun to run with regard to the claim asserted by the social security institution based on another legal basis, because only what has already begun to run can be suspended. In the cases described in Section 50 of the SGB X, only a further decision can suspend a limitation period that has already begun to run for the reimbursement claim established according to Section 50, Paragraph 3 of the SGB X. The four-year limitation period in Section 50 Paragraph 4 of the German Social Code, Book X (SGB X) is a special provision regarding the commencement and running of the limitation period, which supersedes the 30-year limitation period in Section 52 Paragraph 2 of the SGB X as a more specific provision. If the legislator had intended to link the commencement of a 30-year limitation period directly to the issuance of a reimbursement notice, they could have referred to the corresponding application of Section 52 Paragraph 2 of the SGB X instead of the four-year limitation period stipulated in Section 50 Paragraph 4 Sentence 1 of the SGB X.
Source: www.bsg.bund.de
Note:
See the guiding principle by attorney Kay Füßlein, Berlin:
"The right to reimbursement for benefits wrongly paid by the social security provider is subject to a four-year statute of limitations pursuant to Section 50 Paragraph 3 of the German Social Code, Book X (SGB X), unless an administrative act pursuant to Section 52 of the SGB X (enforcement administrative act) has also been issued. A reminder notice with reminder fees does not constitute such an enforcement administrative act."
Comment by attorney Kay Füßlein, Berlin, on this ruling:
Statute of limitations for claims by job centers and the Federal Employment Agency
In the lower courts (social courts and state social courts), it has been largely established that certain claims for reimbursement by job centers can become statute-barred within four years of the issuance of the reimbursement order (A long time ago, a long time ago... Statute of limitations for reimbursement claims under SGB II or "damage management" through avoidance of case law? (A long time ago II) or Statute of limitations and reminder fees)
After the Federal Employment Agency dodged the issue of a final court ruling, the Federal Social Court ruled on March 4, 2021, according to the hearing report from that day:
The defendant's appeal is unfounded insofar as the lower courts found that the claims asserted in the reimbursement notices are time-barred. Section 50, paragraph 4, sentence 1 of the German Social Code, Book X (SGB X) links the commencement of the limitation period for claims by a social security institution for reimbursement of benefits wrongfully paid to a written administrative act within the meaning of Section 50, paragraph 3 of the SGB X that specifically establishes the reimbursement claim and its finality. The four-year limitation period meant that the limitation period began to run at the start of 2016. The plaintiff invoked the statute of limitations without any legal objection.
Source: www.ra-fuesslein.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG NRW, Judgment of 19 November 2020 – L 19 AS 1204/20 – Appeal allowed
No employee status with a salary of 100 euros for ten hours of work per month
If the (European law-defined) employee status is lacking due to a subordinate and insignificant activity, there is no entitlement to unemployment benefit II.
Summary:
After considering all the circumstances, the plaintiff was not an employee within the meaning of Section 2 Paragraph 2 No. 1 of the Freedom of Movement Act/EU (FreizügG/EU) due to the employment contract, because the marginal employment he performed was a subordinate and insignificant activity. While neither the fact that the marginal employment was exempt from social security contributions nor the lack of a provision regarding vacation entitlement precluded the assumption of employee status, the generally binding collective agreement for the restaurant and hotel industry in the state of North Rhine-Westphalia was applicable to the plaintiff's employment relationship. However, the activity was deemed subordinate and insignificant in view of the extremely low level of the agreed remuneration – €100.00 per month – and the working hours – 10 hours per month – even considering that the employment relationship was permanent and that the agreed hourly wage of €10.00 exceeded the minimum wage of €9.19 applicable in 2019 according to the Minimum Wage Act (MiLoG) and the collectively agreed wage of €9.53 applicable to pay group 1 (among others, dishwashers). The plaintiff could also not successfully rely on decisions of the Federal Social Court (BSG), as these concerned significantly longer working hours – 7.5 hours per week or 30 hours per month.
The LSG has granted leave to appeal.
Source: Press release from the LSG Essen dated February 26, 2021
2.2 – LSG NRW, judgment of November 9, 2020 – L 19 AS 212/20
SGB II entitlement for half-siblings of a German citizen
Family members of a German citizen – in this case, the half-siblings of a minor who have a residence permit due to family reunification – are not covered by the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book II (SGB II).
Summary:
The exclusion from benefits does not apply here. Although the plaintiffs had only resided in Germany for less than three months, the purpose and systematic considerations derived from the legislative history and systematic interpretation of the provision were not intended to impair the legal position of third-country nationals who move to Germany to join a German citizen for family reunification. The provision must therefore be interpreted restrictively to mean that family members of a German citizen who hold a residence permit under the provisions of the Residence Act (AufenthG) – residence for family reasons – or who have been issued a national visa by a German embassy for the purpose of family reunification, are not covered by this regulation. As half-siblings of a German citizen, the plaintiffs were second-degree relatives of a minor German citizen and thus other family members in a collateral line within the meaning of the Residence Act. Furthermore, they had been granted a visa for the purpose of family reunification.
Source: Press release from the LSG Essen dated February 25, 2021
2.3 – LSG Berlin-Brandenburg, decision of 27.11.2020 – L 32 AS 1455/20 B ER
Revocation of a final decision granting basic income support benefits due to a change in circumstances – special provision pursuant to Section 40 Paragraph 4 of the German Social Code, Book II (SGB II)
Guiding principle (Juris):
1. Section 40 paragraph 4 of the German Social Code, Book II (SGB II) contains a special legal basis for the revocation of final benefit decisions due to changes in certain factual circumstances and thus a special regulation for the amendment of benefit decisions within the scope of application of the SGB II. (Paragraph 42)
2. Subsequently, a final decision granting basic income support benefits must be revoked with future effect in cases where the change in circumstances would result in a provisional decision being made upon a new application, § 41a SGB 2. (Rn.43)
3. If the social security provider, when issuing a withdrawal order for benefits under Book II of the German Social Code (SGB II), has no information whatsoever about the person entitled to basic income support, a preliminary decision on the provision of benefits cannot be made pursuant to Section 41a Paragraph 1 Sentence 1 of Book II of the German Social Code (SGB II). (Paragraph 53)
4. If the applicant lacks the capacity to work, the requirements of Section 40 Paragraph 4 of the German Social Code, Book II (SGB II) are not met. In such a case, the issuance of an administrative act pursuant to Section 41a of the SGB II is not possible due to the lack of a legal entitlement. (Paragraph 57).
Source: www.berlin.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Lüneburg, decision of 10.02.2021 – S 23 AS 13/21 ER
No urgent need for the provision of medical masks by SGB II benefit providers
Principle (Juris)
1. For the obligation of the benefit provider under the German Social Code, Book II (SGB II) to assume the costs of acquiring medical masks by way of an interim injunction, there is – regardless of the existence of a claim – in any case no ground for an injunction.
2. The purchase price of surgical masks sufficient for use on public transport and for shopping in retail stores is so low that it can be covered by the available resources of a person in need of assistance, and awaiting the outcome of potential main proceedings appears reasonable. This is particularly true given that, due to the pandemic-related ban on cultural events, the portion of the standard benefit earmarked for culture can be reallocated to the purchase of masks.
Source: www.rechtsprachung.niedersachsen.de
3.2 – SG Osnabrück, decision of 01.02.2021 – S 22 AS 16/21 ER
General suspicion of concealment among those in need of assistance when accessing unemployment benefit II during the pandemic?
Guidance (Editor)
1. Provisional granting of ALG II, because it appears that the JobCenter has not fully reviewed the submitted documents, but nevertheless repeatedly requests the same documents in some sections.
2. The Chamber considers it excessive to simultaneously impose a general suspicion of concealment on the failure to disclose unused accounts/savings books and the layman's classification of powers of disposal from which no personal benefit is credibly derived.
Source: www.rechtsprachung.niedersachsen.de
3.3 – Social Court Munich, decision of 10 February 2021 – S 37 AS 98/21 ER
No urgent need for the provision of medical masks by SGB II benefit providers
Guiding principle (Editor)
1. No additional funding is required from the job center for the purchase of FFP2 masks currently required for shopping and public transport due to the Corona pandemic.
2. There is also no ground for an order in the sense of the urgency of a judicial decision, since it can be assumed that, due to the city sending 5 masks per person and the now commenced issuance of vouchers for FFP2 masks by health insurance companies to recipients of SGB II and SGB XII benefits, there is no longer any need for an urgent court decision to exempt the applicants from the financial burden of the FFP2 mask requirement when shopping and using public transport.
Note:
See also Social Court Lüneburg, decision of February 10, 2021 – S 23 AS 13/21 ER; regarding the German Social Code, Book XII (SGB XII): Social Court Munich, decision of February 3, 2021 – S 46 SO 29/21 ER; a different view: 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
3.4 – Social Court Dresden, Decision of 01.03.2021 – S 29 AS 289/21 ER
Job centers are not required to pay additional costs for FFP2 masks
Guiding principle (Editor):
Recipients of benefits under the German Social Code Book II (so-called "Hartz IV") may not demand additional payments from the job center for the purchase of FFP2 masks.
Summary:
The decisive legal basis for the claim is Section 21 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II). According to this provision, additional needs are recognized for benefit recipients if an unavoidable, special need exists in an individual case. However, this need has neither been credibly demonstrated, nor is there a particular urgency. According to Section 2 of the Coronavirus Protective Mask Ordinance, the applicant is already entitled to 10 free FFP2 masks, which he can pick up at the pharmacy. An absolute obligation to wear FFP2 masks exists according to Section 3 Paragraph 1b of the Saxon Corona Protection Ordinance of February 12, 2021, only in a few situations, which are not relevant for the unemployed applicant (e.g., for employees of outpatient care services). In all other areas of public life, according to the Saxon Corona Protection Ordinance of February 12, 2021, everyday face masks or – particularly on public transport, while shopping, and in doctors' offices and hospitals – surgical masks, which the applicant could purchase cheaply at discount stores, were still sufficient. These offered adequate protection for others and sufficient protection for the wearer when used correctly. The Hartz IV payments already received by the applicant were sufficient to cover these costs.
The court's decision is final.
Source: Press release from SG Dresden dated March 2, 2021
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Berlin-Brandenburg, judgment of January 18, 2021 – L 18 AL 32/20
Waiting period for refusal of work – start date – previous waiting period – information on legal consequences
Guidance (Editor)
1. There is no lack of sufficient information regarding the legal consequences of a three-week suspension period. This is because sufficient information regarding the legal consequences can be assumed insofar as it concerns a first instance of conduct contrary to insurance regulations and the resulting legal consequence of a three-week suspension period.
2. However, the other prerequisites for the commencement of the three-week suspension period were not met, regardless of whether the plaintiff prevented the job interview from taking place by failing to attend without a valid reason. This is because the suspension period for refusing employment begins by law on the day after the event that gives rise to the suspension, or, if – as in this case – that day falls within an existing suspension period (see the legally binding judgment of the court of first instance of July 28, 2020 – L 18 AL 29/20 –), at the end of that suspension period (see Section 159 Paragraph 2 Sentence 1 of the German Social Code, Book III).
Source: gesetze.berlin.de
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – Social Court Frankfurt, judgment of 14 December 2020 – S 20 SO 144/17
Principle (Juris):
There is no entitlement under the German Social Code, Book XII (SGB XII) to the provision of an internet-enabled computer for school attendance, as the device is not a household item and the costs for such a device have been taken into account in the standard allowance and within the framework of education and participation.
Source: www.rv.hessenrecht.hessen.de
Note:
The directive of the Federal Employment Agency has no effect on those entitled to benefits under Book XII of the German Social Code (SGB XII) and analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). According to the directive from the Federal Ministry of Labour and Social Affairs dated February 9, 2021 (Ref.: Vb1-50114), the entitlement to the provision of digital devices also exists within the scope of Book XII of the German Social Code (SGB XII), in accordance with the directive in Book II of the German Social Code (SGB II) (Directive 202102001/ GR 1- II-1900 dated February 1, 2021), in the amount of a total of EUR 350.
According to the BMAS directive, Section 37 Paragraph 1 of the German Social Code, Book XII (SGB XII) allows for the granting of a loan with a simultaneous, permanent waiver of repayment pursuant to Section 37 Paragraph 4 of the SGB XII ("zero-percent loan"). This binding declaration of permanent waiver of repayment should be submitted with the application.
Therefore, for reasons of equal treatment between SGB II and SGB XII or analogous benefits according to § 2 AsylbLG, digital devices must also be provided to children and young people in the present case.
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Hildesheim Social Court, decision of 19 February 2021 – Case No.: S 27 AY 4032/20 ER
Legal provisions: Section 2 Asylum Seekers' Benefits Act (AsylbLG), Sections 3, 3a AsylbLG – Keywords: Russian Federation, no abusive manipulation of the duration of stay in Germany, AsylbLG, court decision, Hildesheim Social Court
Guidance (Editor)
1. Re-entry into the federal territory does not, in itself, constitute an abuse of rights (cf. (LSG Lower Saxony-Bremen, decision of April 9, 2020 – L 8 AY 4/20 B ER).
2. Furthermore, the applicants' conduct does not provide sufficient evidence of an abuse of rights. The applicants' endeavor to secure a livelihood for themselves and their family is likewise not to be considered an abuse of rights (see Lower Saxony-Bremen State Social Court, decision of April 9, 2020 – L 8 AY 4/20 B ER).
Source: Attorney Sven Adam, Göttingen
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Online application for unemployment benefits: Read in full before submitting – Lower Saxony-Bremen State Social Court, judgment of 25 January 2021 – L 11 AL 15/19
The LSG Celle-Bremen has ruled that an unemployed person cannot claim ignorance of their notification obligation if they have confirmed receipt of the information sheet "Rights and Obligations" in the online application.
The LSG (Landessozialgericht – Higher Social Court) has confirmed the legal opinion of the Federal Employment Agency.
The agency reasoned that entitlement to unemployment benefits (ALG) is forfeited even in the case of unpaid trial work of at least 15 hours per week, as the individual is thereby no longer available for job placement. Ignorance of the reporting requirement cannot be used as an argument against the demand for repayment of unemployment benefits. This requirement is stated in the information leaflet, which every unemployed person confirms receipt of by signing the application. The same applies to online applications, as these can only be sent to the Federal Employment Agency if the applicant has previously confirmed receipt by clicking a button. The man had done this. If, despite this, the trial work was not reported, the individual was acting with gross negligence.
Source: Press release of the LSG Celle-Bremen No. 7/2021 dated March 1, 2021
State Social Court of Lower Saxony-Bremen, Judgment of 25 January 2021 – L 11 AL 15/19
Unemployed individuals must immediately report any trial work they undertake to the Federal Employment Agency.
A legally relevant employment relationship does not require payment.
Guiding principle (Editor):
Even a trial employment relationship constitutes employment within the meaning of Section 138 Paragraph 3 of the German Social Code, Book III (SGB III), even if no remuneration is paid for it.
Note:
Guiding principle Dr. Manfred Hammel:
The commencement of a trial employment relationship precludes the affirmation of unemployment within the meaning of Section 138 Paragraph 1 No. 1 SGB III and thus the assertion of a claim to unemployment benefit I (Section 136 Paragraph 1 No. 1 SGB III).
This also constitutes an employment relationship within the meaning of Section 7 Paragraph 1 of the German Social Code, Book IV (SGB IV). According to Section 7 Paragraph 2 of the SGB IV, employment also includes "the acquisition of professional knowledge, skills or experience within the framework of in-company vocational training," provided that this framework involves at least 15 hours of work per week.
During a trial employment relationship, a job applicant does not only behave passively, but also provides services of economic value.
A legally relevant employment relationship does not require agreed remuneration for the respective activity.
Failure to report the commencement of a trial employment relationship to the Federal Employment Agency constitutes a breach of the duty to cooperate pursuant to Section 60 Paragraph 1 Sentence 1 No. 2 of the German Social Code, Book I (SGB I). Taking up such employment also represents a change in personal and economic circumstances.
Since recipients of unemployment benefit I (Alg I) are explicitly informed in the "Information Sheet 1 for the Unemployed – Your Rights, Your Obligations" provided to them by the authorities of their obligation to report even a trial employment relationship without delay, any failure to do so by an Alg I recipient is to be considered grossly negligent within the meaning of Section 45 Paragraph 2 Sentence 3 No. 3, second half-sentence of the German Social Code, Book X (SGB X). This allows the Federal Employment Agency (BA) to revoke the Alg I benefit in accordance with Section 48 Paragraph 1 Sentence 1 of the SGB X in conjunction with Section 330 Paragraph 3 of the German Social Code, Book III (SGB III), from the beginning of the trial employment relationship within the one-year period stipulated in Section 45 Paragraph 4 Sentence 2 of the SGB X.
7.2 – Ruling: Job center does not have to pay for FFP2 masks
The Social Court in Braunschweig has ruled:
The job center is not obligated to pay for a young woman's FFP2 masks. The single mother of two receives basic income support from the job center. She requested a supplement of €129 per month to purchase enough protective masks, arguing that this was impossible with her standard allowance. The social court disagreed. The woman had already received ten FFP2 masks free of charge, and these can be reused. Furthermore, simple surgical masks are available for less than 50 cents each. The woman's application was rejected.
Source: www.ndr.de
7.3 – No majority for demand for multiple plaintiff fee
On March 5, 2021, the Federal Council debated Hesse's proposal to introduce a special procedural fee for so-called "frequent litigants" in the social court system.
However, the bill failed to secure the required absolute majority of 35 votes in the plenary vote. It will therefore not be submitted to the Bundestag.
's proposal
aimed to relieve the social courts of hopeless cases by imposing a special fee of €30 on so-called "frequent litigants." This would be defined as anyone who has initiated ten or more legal proceedings in a state within the last ten years. These individuals would be required to pay the fee for any new case to be accepted. Under current law, proceedings before the social courts are free of charge for plaintiffs.
The fee would not be covered by legal aid, but would be reimbursed if the lawsuit were successful. Furthermore, the courts could review the fee assessment at any time.
Avoid hopeless procedures
Continue on Juris
Harald Thomé's commentary (Thome Newsletter 10/2021):
Many court cases could be avoided if the laws were improved, and even more if there were effective legal oversight of the respective social service providers, ensuring consistent compliance with the law. The motivation of authorities to act lawfully could be significantly increased by imposing court costs and applying more frivolous fines to authorities. Introducing the right for associations to bring legal action in social courts would also prevent many individual lawsuits. Finally, funding genuinely independent social welfare counseling would also lead to fewer lawsuits being filed.
The exemption from court fees in social court proceedings is an achievement of the rule of law and must remain untouched!
7.4 – Section 1a AsylbLG generally means a reduction of 55 percent compared to basic benefits
The Rhineland-Palatinate Ministry of Integration regularly publishes detailed information on the nationwide standard rates of need, including those for each section of the Asylum Seekers' Benefits Act (AsylbLG). The 2021 rates can be found here, here, and here.
More information: www.ggua.de
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
