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 – Federal Social Court (BSG) judgment of December 8, 2020 – B 4 AS 46/20 R
Basic income support for job seekers – Withdrawal of benefit approval – Specificity – Compliance with the one-year time limit – Recognizability of the scope of the withdrawal – Apparent authority and authority of the representative of the household – Attribution of the representative's conduct
Adult son liable for false Hartz IV information provided by father
Guidance (Editor)
1. Anyone who tolerates another person acting as their representative must, according to the principles of apparent authority or implied authority, be held accountable for that person's conduct, even if they had no intention of granting authority.
2. The conditions for the revocation of the benefit awards with retrospective effect are also met insofar as the awards were based on at least grossly negligent false statements by the father of the adult plaintiff.
Source: www.rechtrecht-im-internet.de
Note:
Guiding principle Dr. Manfred Hammel
Section 45 of the German Social Code, Book X (SGB X) is to be applied in accordance with Section 40 Paragraph 2 No. 3 of the German Social Code, Book II (SGB II) in conjunction with Section 330 Paragraph 2 of the German Social Code, Book III (SGB III), if the job center has originally made a final decision on the granting of benefits in cases of fluctuating income (Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II)).
Grossly negligent incorrect or incomplete information regarding facts establishing a claim within the meaning of Section 45 Paragraph 2 Sentence 3 No. 2 of the German Social Code, Book X (SGB X) is to be assumed if a father fails to notify the SGB II agency that his son is no longer only receiving child benefit, but is in the meantime pursuing education and receiving an income – even if not a constant one.
This father acted in relation to the job center within the framework of a so-called power of attorney pursuant to Section 13 Paragraph 1 of the German Social Code, Book X (SGB X), so that the son must be held accountable for the conduct of his guardian.
1.2 – BSG, Judgment of 04.03.2021 – B 11 AL 3/20 R
Federal Social Court resolves dispute over levy for severely disabled persons
Providers of vocational training programs for disadvantaged people cannot reduce the statutory compensation levy for severely disabled persons by including severely disabled participants.
Even if severely disabled individuals assigned by the job center are completing vocational training at the facility, the program does not constitute regular employment, the Federal Social Court (BSG) clarified in a ruling announced on Thursday. (Case number: B 11 AL 3/20 R) Therefore, the participants cannot be considered for a reduction in the disability compensation levy, the judges in Kassel explained.
The purpose of the statutory levy is to incentivize employers to employ severely disabled individuals. It becomes payable if a company has 20 or more employees and the employment rate of severely disabled individuals is below five percent. Depending on the percentage of severely disabled employees, employers had to pay €125, €220, or €320 per month for each unfilled position in 2020.
Continue to the source: www.evangelisch.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of 01/22/2021 – L 25 AS 43/21
Basic income support for job seekers – EU citizens – Right of residence for job seeking – Right of residence as an employee – Marginal employment – Minijob
Principle (Juris)
1. To determine whether the person concerned is an employee, the overall assessment of the employment relationship must take into account not only aspects such as working hours and the amount of remuneration, but also aspects such as the entitlement to paid leave, the validity of continued payment of wages in case of illness, the application of the collective agreement in its currently valid version to the employment contract, and the duration of the employment relationship.
2. Fixed wage and working hours cannot be used to assess employee status. The assumption that the threshold of insignificance is reached at a weekly working time of six hours is therefore not supported by the highest court rulings and also does not appear appropriate.
Source: gesetze.berlin.de
2.2 – Saxon State Social Court, Judgment of February 25, 2021 – L 7 AS 45/17
Basic income support for job seekers – unavoidable additional needs – travel expenses for medical treatments – deductibility of contributions for two motor vehicle liability insurance policies in a household with two employable members
Principle Juris
1. An unavoidable additional need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for attending medical treatment appointments does not exist if the claimed travel expenses are only 1.50 euros per month above the amount of transportation included in the standard rate.
2. In a household receiving social assistance, the contribution to motor vehicle liability insurance for each employable member is deductible from the income of the employed member in accordance with Section 11b Paragraph 1 Sentence 1 No. 3 of the German Social Code, Book II (SGB II), even if the other member does not receive any (sufficient) income.
Legal tip from the editor:
cf. 1. Hamburg Higher Social Court, judgment of October 1, 2020 – L 4 AS 66/19 – (Regarding the consideration of additional needs for travel expenses to doctors and therapists, denied here because no atypical need or significant deviation from average needs could be established); 2. Hessian Higher Social Court, judgment of July 10, 2019 – L 6 AS 565/17 – Appeal pending before the Federal Social Court (BSG) – B 4 AS 81/20 R (Consideration of travel expenses in connection with medical and psychotherapeutic treatments as additional needs pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), denied here – At least if the eligible expenses for transportation – as in this case – consistently fall short of the amounts used as a basis for calculating the standard benefit and further expenses cannot be determined with the necessary certainty, the person concerned cannot claim additional needs pursuant to Section 21 Paragraph 6 of the SGB II) and 3. Saxony State Social Court, Judgment of November 5, 2020 – L 7 AS 83/17 (Reimbursement of travel expenses for outpatient psychotherapy as additional needs pursuant to Section 21 Paragraph 6 of the SGB II within the framework of basic income support benefits)
Note in this judgment:
The plaintiffs' claim for reimbursement of childcare costs (after-school care costs) does not follow from Section 21 Paragraph 6 of the German Social Code, Book II (see Higher Social Court of North Rhine-Westphalia of 10 December 2020 – L 7 AS 1634/18).
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Munich, decision of 22 February 2021 – S 52 AS 127/21 ER
No urgent need for the provision of medical masks by SGB II benefit providers
Guidance note (Editor)
1. In the Chamber's assessment, the additional expense of €12 per month does not justify an emergency that would require an injunction.
2. As the 46th Chamber of the Munich Social Court and the Karlsruhe Social Court have established in their recent decisions, public life has been significantly restricted for some time and will continue to be so for an indefinite period. This means that other expenses for leisure, culture, restaurants, etc., are either not incurred or are significantly reduced. Therefore, compensation from other groups in need is reasonable.
Source: www.gesetze-bayern.de
Legal tip:
See also Social Court Dresden, decision of March 1, 2021 – S 29 AS 289/21 ER (not published); Social Court Munich, decision of February 10, 2021 – S 37 AS 98/21 ER; 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; alternative 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 weekly for Hartz IV recipients
3.2 – Schleswig Social Court, Judgment of 25 November 2020 – S 9 AS 639/18, Appeal pending before the Federal Social Court – B 4 AS 8/21 R
Is a heating cost surcharge to be recognized in full as a need for accommodation and heating even if the energy supplier offsets it against an electricity cost credit and the surcharge amount has thereby been reduced?
Quote from Juris: “The fact that the plaintiff obtains electricity and gas from a single supplier must not result in any disadvantage relevant to her needs (see, for the German Social Code, Book XII: Social Court Schleswig, judgment of September 28, 2017, S 15 SO 122/16 and confirming Higher Social Court Schleswig-Holstein, judgment of September 24, 2020, L 9 SO 72/17).”
Note:
Schleswig-Holstein State Social Court, judgment of 24 September 2020 – L 9 SO 72/17 – appeal pending before the Federal Social Court – B 8 SO 16/20 R
Regarding the question of whether a heating cost surcharge also belongs to the current need in the month it is due, if the energy supplier offsets the heating cost surcharge against an electricity cost credit (paid from the standard allowance).
Principle (Juris)
1. If a utility company offsets its heating cost arrears claim against a simultaneously existing electricity cost credit saved from the standard allowance, this offset does not lead to a lower heating requirement for the benefit recipient.
3.3 – Social Court Berlin, Judgment of December 3, 2020 (S 128 AS 7217/19):
Dr. Manfred Hammel's guiding principle:
Section 41a Paragraph 4 of the German Social Code, Book II (SGB II) applies to all income eligible for consideration within the meaning of Section 11 Paragraph 1 Sentence 1 of the SGB II, including income from self-employment, regardless of the reason for the provisional nature of the benefit award. The law contains no restrictions in this regard.
The application of Section 41a Paragraph 4 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) can certainly be advantageous for persons receiving unemployment benefit II (Alg II) if, in the case of significantly fluctuating income, a considerable portion of these funds is "used up" in a month that then leaves the person without entitlement to benefits under Section 7 Paragraph 1 Sentence 1 of the SGB II in conjunction with Sections 19 et seq. of the SGB II, and the further income, which can be taken into account under Sections 11 et seq. of the SGB II, is significantly lower in later months.
3.4 – Social Court Karlsruhe, Decisions of 03.03.2021 – S 4 AS 470/21 ER, S 18 AS 469/21 ER, S 3 AS 472/21 ER, S 17 AS 471/21 ER
No entitlement to FFP2 masks for a family of six in expedited proceedings
Referring to a decision by the 12th Chamber of the Social Court Karlsruhe (S 12 AS 213/21 ER), which granted a job seeker the right to 20 FFP2 masks per week, a large number of further applications of this kind were subsequently received by the Social Court Karlsruhe.
Several chambers had to decide on the urgent applications of a family of six whose applications for additional needs allowances under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) had been rejected by the job center. The urgent applications were unsuccessful. The chambers did not follow the jurisprudence of the 12th chamber.
The 3rd and 17th Chambers rejected the parents' applications for preliminary injunctions, arguing that they were not legally obligated to wear FFP2 masks. Even after the amendment to the Baden-Württemberg state coronavirus regulations on January 25, 2021, the wearing of FFP2 masks was only mandatory in hospitals, nursing homes, and outpatient care services. Furthermore, no need for basic social security benefits could be derived from fundamental rights. The applicants had not demonstrated any individual circumstances that could justify such a claim. The deciding chambers left open the question of whether an additional allowance for the purchase of medical surgical masks should be granted. In their view, the applicants had not credibly demonstrated that they could not advance the costs of purchasing these masks until a final court decision. The purchase of such masks was relatively inexpensive and could initially be financed from the monthly standard allowance, for example, by saving money in other areas such as leisure and culture. Furthermore, according to the Coronavirus Protective Mask Ordinance, the applicants would be entitled to ten free FFP2 masks each, which could be obtained from pharmacies. The applicants also stated that they had already stocked up on FFP2 masks at the end of January.
The applications of the family's schoolchildren, who are currently attending alternating in-person and remote learning, were also unsuccessful before both the 4th and 18th Chambers. There is no obligation for children aged six to fourteen to wear an FFP2 mask or a medical mask. One reason for this exemption is the specific fit of these masks, which are not designed for the face shape and head size of children, meaning that the masks cannot provide their full filtration efficiency for children of this age group.
Finally, the 17th Chamber rejected the application of the family's four-year-old child on the grounds that, due to his age, he was exempt from the obligation to wear a mask of any kind.
Decisions dated 01.03.2021 – S 4 AS 470/21 ER and S 18 AS 469/21 ER (each legally binding) and 03.03.2021 – S 3 AS 472/21 ER (legally binding) and S 17 AS 471/21 ER (not legally binding).
Source: Press release from the Karlsruhe Social Court dated March 8, 2021
Legal tip:
See also Social Court Dresden, decision of March 1, 2021 – S 29 AS 289/21 ER (not published); Social Court Munich, decision of February 22, 2021 – S 52 AS 127/21 ER; Social Court Munich, decision of February 10, 2021 – S 37 AS 98/21 ER; 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; alternative view: Social Court Karlsruhe, decision of... February 11, 2021 – S 12 AS 213/21 ER – Additional Hartz IV allowance of €129 per calendar month for FFP2 masks – 20 FFP2 masks per week for Hartz IV recipients
3.5 – SG Oldenburg, decision of 08.03.2021 – S 37 AS 48/21 ER
No FFP2 masks from the job center
A married couple from Delmenhorst failed in their application for preliminary legal protection against the Delmenhorst Job Center before the Social Court of Oldenburg, in order to receive 20 FFP-2 masks per person per week or to have the money for them reimbursed.
The applicants are receiving benefits under the German Social Code, Book II (SGB II, also known as Hartz IV). At the end of February, they applied to the job center for a supply of FFP2 masks. They justified their application by stating that masks were mandatory due to the coronavirus pandemic and that the costs for the masks were not covered by their standard benefits under SGB II. The job center rejected this application.
By decision of March 8, 2021 (case number S 37 AS 48/21 ER), the Oldenburg Social Court rejected the application for a preliminary injunction against the Jobcenter. The court reasoned that while the provision of protective masks is not covered by the standard benefit rate under the German Social Code, Book II (SGB II), there is also no compelling, special need within the meaning of Section 21 of the SGB II for the supply of FFP2 masks. The applicants are not obligated to wear FFP2 masks under the Corona Ordinance. No special circumstances were presented that would make wearing these masks absolutely necessary for the applicants.
The applicants are also able to cover any potential need for FFP2 masks through savings from their standard allowance. According to a study by the University of Münster, FFP2 masks can be reused after a 7-day drying period, meaning that a maximum of 10 FFP2 masks would be needed per person per month. The cost would therefore amount to no more than approximately €10 per month. However, the German Social Code, Book II (SGB II), provides for standard allowances for transportation (approximately €39) and culture/entertainment (approximately €42), which are not in place to this extent during the coronavirus pandemic. The costs for FFP2 masks could be covered by such savings. Any necessary medical masks, which are considerably cheaper than FFP2 masks, could also be purchased by the applicants using these savings.
Any potential need for FFP2 masks is currently already met for another reason. The applicants are also entitled to 10 free FFP2 masks from their health insurance provider, meaning they can currently obtain the desired masks without incurring any further costs. Therefore, there is currently no urgency to assert a claim against the job center.
The Oldenburg Social Court thus deviates from a decision of the Karlsruhe Social Court, which affirmed a claim of a benefit recipient under the SGB II to 20 FFP-2 masks per person per week against the job center (S 12 AS 213/21 ER).
This decision is not legally binding.
Source: Press release from the Oldenburg Social Court dated March 9, 2021, including a link to the corresponding decision
Legal tip:
see also Social Court Karlsruhe, decisions of 03.03.2021 – S 4 AS 470/21 ER, S 18 AS 469/21 ER, S 3 AS 472/21 ER, S 17 AS 471/21 ER; Social Court Dresden, decision of 01.03.2021 – S 29 AS 289/21 ER (not published); Social Court Munich, decision of 22.02.2021 – S 52 AS 127/21 ER; Social Court Munich, decision of 10.02.2021 – S 37 AS 98/21 ER; Social Court Munich, decision of February 2, 2021 – S 13 AS 104/21 ER (not published – costs for hygiene products and over-the-counter medical supplies, which include FFP2 masks, are included in the standard allowance and must therefore be financed from the standard allowance available to the applicant); 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. Opinion:
Social Court Karlsruhe, decision of 11.02.2021 – S 12 AS 213/21 ER – Hartz IV additional needs of EUR 129 per calendar month due to FFP2 masks – 20 FFP2 masks weekly for Hartz IV recipients
3.6 – SG Berlin, Judgment of 27 January 2021 – S 114 AS 3501/17
Incomplete instruction – no sanction – an article by attorney Kay Füßlein
The plaintiff is self-employed and was supposed to complete a measure whose purpose and objective were rather inconsistent with her self-employed activity.
She therefore did not take up the measure and was sanctioned by 30%.
The appeal against the sanction was successful, with a very convincing argument referring to the jurisprudence of the Federal Constitutional Court – and the new jurisprudence of the Federal Social Court on instruction during periods of suspension – namely that the instruction on the legal consequences (i.e. the indication of when a sanction will take effect) was incorrect:
According to the Federal Constitutional Court's ruling, a reduction in benefits under Section 31a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) can only comply with the requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG) if it is not aimed at repressively punishing misconduct, but rather at ensuring compliance with obligations to cooperate that serve precisely to prevent or overcome existential need. Strict requirements of proportionality therefore apply, because reducing subsistence benefits to enforce obligations to cooperate is in clear tension with the state's obligation to guarantee subsistence under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law. This is because the legislature is withholding what it is obligated to guarantee under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law. It imposes an extraordinary burden because it suspends what is constitutionally guaranteed to those in need.
This was not the case here; current decisions occasionally contain this reference; however, the judgment (or the court order) should apply to ongoing proceedings.
Source: Attorney K. Füßlein,
full text: www.ra-fuesslein.de
Editor's note: a. View:
e.g., Social Court Munich, judgment of January 31, 2020 – S 46 AS 536/18;
similarly, Social Court Hamburg, judgment of September 24, 2020 – S 58 AS 369/17
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – Social Court Karlsruhe, Judgment of 17 November 2020 – S 2 SO 1851/18
The rent ceiling for the city of Karlsruhe is based on a coherent concept in accordance with the jurisprudence of the Federal Social Court.
Brief description:
The single plaintiff is seeking higher housing and heating costs for the period from May 2018 to April 2019. He has lived in an 84 m² apartment since 2010 with an unchanged net rent of €550.00 plus advance payments of €200.00 for utilities and heating. The social welfare office, in accordance with its rent ceiling, only considered housing costs of €452.70 (gross rent) plus €65.00 for heating. The plaintiff objected to the reduction in housing costs, arguing that he could not live on the reduced amount. He stated that he had not yet found an apartment and had been applying unsuccessfully for years.
The Second Chamber of the Karlsruhe Social Court dismissed the lawsuit. The plaintiff is not entitled to higher housing and heating costs. The rent ceiling of €452.70 for single-person households in the city of Karlsruhe, applied from July 2017, is based on a sound concept in accordance with the jurisprudence of the Federal Social Court.
The qualified rent index was compiled using recognized mathematical and statistical principles. It includes both new and existing rents, with the raw data being collected from a sample and the total housing stock being considered representatively with regard to ownership structure, building age structure and distribution across individual districts in the comparison area.
It is ensured that no ghettos will form. Excluding apartments with the "very basic" furnishing criterion, in combination with a range from the 17th to the 83rd percentile, is suitable for excluding apartments of the lowest standard, as required by case law. Restricting the selection to the "basic" and "good" furnishing categories, taking into account the underlying points system, reliably guarantees the exclusion of upscale apartments and thus the equally necessary limitation to basic to average furnishings. Excluding data from the living space group up to 30 m² avoids distortions caused by the special features frequently found in this segment (e.g., furnished rentals).
The calculation of upper and lower limits of the rent ranges filtered out extreme values. The upper limit of the range, €8.27 per square meter, was then used as the sole basis for the eligible net rent. The inclusion of an additional €1.79 per square meter for operating costs (excluding heating and hot water) was also deemed acceptable. Since no other data was available and could not have been obtained with reasonable effort, recourse to the German Tenants' Association's 2016 operating cost index was permissible. The values in that index were correctly reduced by the included costs for heating and hot water. No disadvantage to recipients of benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII), is expected.
Since the base rent calculated in the qualified rent index is significantly exceeded, it can be assumed without further investigation that there is a sufficient number of apartments available in the local comparison area at the abstractly reasonable rents.
Source: Sozialgericht-karlsruhe.justiz-bw.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Social courts disagree
Is the job center required to pay for FFP2 masks?
Can recipients of Hartz IV benefits afford FFP2 masks from their standard allowance, given their lower expenses during the pandemic, or would this be detrimental to infection control? Social courts have differing opinions on this.
More information: www.lto.de
5.2 – Corona makes the poor even poorer
Those who earn little have often become even poorer during the pandemic. This is evidenced by the draft of the government's poverty report. From the perspective of advocacy groups, this is a failure of policymakers: efforts to mitigate the consequences of the crisis were insufficient.
More information: www.tagesschau.de
5.3 – Reutlingen Social Court: Are benefit recipients entitled to €129 per month for FFP2 masks? Reutlingen Social Court says no
The Reutlingen Social Court has dealt with a ruling from Karlsruhe – and has made a decision regarding the financial claims of benefit recipients.
The 4th Chamber of the Reutlingen Social Court upheld the decision of the Karlsruhe Social Court and rejected the application for preliminary legal protection. It was deemed implausible that the applicant required the use of 20 FFP2 masks per week. According to the Corona Ordinance, the only mandatory requirement for an adult job seeker to wear an FFP2 mask is when visiting hospitals and inpatient facilities for people requiring care and support. Contrary to the ruling of the Karlsruhe Social Court, the Reutlingen Social Court held that this did not constitute a violation of higher-ranking law. Insofar as the applicant had a legitimate interest in using FFP2 masks in situations where this was not mandatory, the low purchase price of these masks (€0.845 per mask) and accompanying legislative regulations (ten free masks in March 2021 and a €150 pandemic-related special payment in May 2021) meant that there was no significant additional financial burden.
No entitlement in Reutlingen.
The 7th Chamber of the Social Court of Reutlingen also rejected the applicants' request for an additional "Corona need" (for example, for procuring FFP2 masks) in a separate decision dated March 10.
The justification given included the fact that savings could currently be generated from the lump-sum standard allowance, since due to the restrictions on public and social life caused by the lockdown, certain contributions included in the standard allowance, such as in transport (40.01 euros), culture and leisure (43.52 euros) and catering services (11.65 euros), could not be used, or could hardly be used.
According to Raphael Deutscher, a judge at the Reutlingen Social Court, the decisions from Karlsruhe and Reutlingen are of equal standing. This means:
In Reutlingen, benefit recipients are not entitled to have the job center cover the additional costs of FFP2 masks. The decision of March 9th is legally binding, the one of March 10th is not yet.
Source: www.swp.de
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
