1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG Rheinland-Pfalz, Judgment of 02.02.2021 – L 3 AS 1/20 – The appeal is admitted.
Request pursuant to Section 12a of the German Social Code, Book II (SGB II) in the case of lack of employability within the meaning of Section 8 Paragraph 1 of the German Social Code, Book II (SGB II)
Principle (Juris)
1. Section 12a SGB II does not apply in the case of a lack of employability within the meaning of Section 8 Paragraph 1 SGB II.
2. Since benefits to secure subsistence under the German Social Code, Book II (SGB II) are not subordinate to the benefits of basic income support for the elderly and those with reduced earning capacity under Chapter Four of the German Social Code, Book XII (SGB XII), Section 12a of the SGB II is not applicable in this respect.
Source: www.landesrecht.rlp.de
1.2 – LSG Bayern, decision of 22.01.2021 – L 7 AS 63/21 B ER
Legal remedies regarding sought-after FFP2 masks
Quote from Juris:
“Principle (Juris):
An appeal regarding sought-after FFP2 masks will only be admissible in exceptional cases, as the claimed need will regularly be less than 750.00 euros.”
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Osnabrück Social Court, decisions of 10 March 2021 – S 50 AS 39/21 ER, S 50 AS 51/21 ER
Hartz IV: No entitlement to reimbursement for additional FFP2 masks
Recipients of Hartz IV benefits are not entitled to reimbursement of costs for the procurement of additional FFP2 masks by the responsible job center.
The Osnabrück Social Court decided this on March 10, 2021 in two preliminary legal protection proceedings.
The applicants – a father and his adult son – receive ongoing basic income support for job seekers under the German Social Code, Book II (SGB II, also known as "Hartz IV"). Citing a ruling by the Karlsruhe Social Court (case number S 12 AS 213/21 ER), they applied to the responsible job center for reimbursement of the costs of additional FFP2 masks. The job center rejected this application, arguing that no special additional need was apparent. The applicants – like all other recipients of basic income support – had each received a voucher for ten free FFP2 masks from their health insurance provider. These masks could also be reused. Furthermore, the Lower Saxony Corona Ordinance did not mandate the wearing of FFP2 masks; medical masks were sufficient.
In contrast, the applicants in the expedited court proceedings each argued that they needed 14 FFP2 masks per week, as otherwise their fundamental right to social participation would be disproportionately restricted. They stated that the masks were necessary for using trams and buses, going to the supermarket, using stairwells, and for conversations with neighbors, friends, and relatives. They further argued that masks are intended for single use only.
The Social Court disagreed with this view and rejected the applications, as there was no so-called additional need within the meaning of Section 21 Paragraph 6 Sentence 1 of the Social Code, Book Two (SGB II).
While the coronavirus pandemic has created a particular need for protective masks, which was not taken into account when calculating the standard allowance, the applicants each received ten FFP2 masks from their health insurance provider. According to a recommendation from Münster University of Applied Sciences, these masks can be reused up to five times after drying in the open air. The court reasoned that the aforementioned conversations with neighbors, friends, and relatives should be avoided as personal contacts under Section 1, Sentence 1 of the Lower Saxony Corona Ordinance.
The court also pointed out that a €150 emergency payment for recipients of basic income support is expected to be made at the end of April 2021, primarily to cover additional needs arising from the pandemic. Applicants are expected to bridge the gap until the end of April by reallocating their resources.
The Osnabrück Social Court expressly disagreed with the aforementioned decision of the Karlsruhe Social Court. According to the Osnabrück Social Court, the needs assessment carried out there is out of touch with reality, as an average weekly need of 20 masks does not exist. Applicants are free to claim a greater need (for example, for regular visits to nursing homes).
The decision is legally binding, as the appeal is inadmissible pursuant to Sections 172 and 144 of the Social Court Act (SGG).
Source: Press release from SG Osnabrück dated March 16, 2021
Note:
Similarly, Social Court Reutlingen, decision of March 9, 2021 – S 4 AS 376/21 ER – legally binding and decision of March 10, 2021 – S 7 AS 410/21 ER – not yet legally binding; Social Court Oldenburg, decision of March 8, 2021 – S 37 AS 48/21 ER; Social Court Karlsruhe, decisions of March 3, 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 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 Munich, decision of February 2, 2021 – S 13 AS 104/21 ER (not published); 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 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, and most recently the decision of the 12th Chamber of the Social Court Karlsruhe – S 12 AS 565/21 ER
2.2 – Social Court Karlsruhe, decision of 12 March 2021 – S 12 AS 565/21 ER
On the evident unconstitutionality of the one-off payment to basic income support recipients decided upon in the “Social Protection Package III” for May 2021 in response to the COVID-19 pandemic
Quote from Juris:
“Principle (Juris)
After its announcement by the Federal President, the one-off payment to basic income support recipients decided on May 2021 with the so-called “Social Protection Package III” of 24 February 2021 would be evidently unconstitutional, because the subsistence minimum must not be covered only with a delay of several months and the legislator has not even begun to fulfill its obligations to provide a justification for the law.”
According to the distribution of responsibilities under the Basic Law, the so-called "Corona Cabinet" has no legislative powers whatsoever
2.3 – SG Mannheim, decision of 01.03.2021 – S 5 AS 456/21 ER
Preliminary legal protection – lack of grounds for an order – unemployment benefit II – additional needs – unavoidable ongoing special needs – costs for FFP2 or surgical masks – potential savings from the standard allowance
Quote from Juris:
“Principle (Juris):
There is generally no compelling, special need for the procurement of FFP2 masks or medical protective masks, as those entitled to benefits currently have sufficient opportunities for savings in other areas of life. (Paragraph 6)”
Legal tip:
See also Mannheim Social Court, decision of 25 February 2021 – S 7 AS 301/21 ER
Note:
See also Osnabrück Social Court, decisions of 10 March 2021 – S 50 AS 39/21 ER, S 50 AS 51/21 ER; Reutlingen Social Court, decision of 9 March 2021 – S 4 AS 376/21 ER – legally binding and decision of 10 March 2021 – S 7 AS 410/21 ER – not yet legally binding; Oldenburg Social Court, decision of 8 March 2021 – S 37 AS 48/21 ER; Karlsruhe Social Court, decisions of 3 March 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; Dresden Social Court, decision of March 1, 2021 – S 29 AS 289/21 ER (not published); Social Court Mannheim, decision of February 25, 2021 – S 7 AS 301/21 ER; 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 Munich, decision of February 2, 2021 – S 13 AS 104/21 ER (not published); 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... February 11, 2021 – S 12 AS 213/21 ER – Hartz IV additional needs allowance of €129 per calendar month due to FFP2 masks – 20 FFP2 masks weekly for Hartz IV recipients, and most recently, the decision of the 12th Chamber of the Social Court Karlsruhe – S 12 AS 565/21 ER (quote from Juris: “A constitutionally and federally compliant guarantee of social participation most likely requires, at least until April 30, 2021, that job seekers under the conditions of the Corona pandemic continue to be provided with an average of 20 new mouth and nose protection masks per week, in accordance with the requirements of the standards FFP2 (DIN EN 149:2001), KN95, N95 or a comparable standard without an exhalation valve (continuation of: Social Court Karlsruhe, February 11, 2021, S 12 AS) 213/21 ER)..“
Note:
Editor's note: Press release from the Mannheim Social Court dated March 4, 2021:
There is no additional need for the purchase of medical masks or FFP2 masks due to measures related to the coronavirus pandemic. The Mannheim Social Court (SG) denies an unavoidable, special need for the procurement of masks, as these do not need to be replaced daily and the need can be met through cost-saving measures. Decision of March 1, 2021, file number (Az.) S 5 AS 456/21 ER
Accordingly, other chambers of the Social Court also denied such an additional need for hardship assistance (Case Nos. S 2 AS 607/21 ER, S 4 AS 302/21 ER, S 7 AS 301/21 ER, S17 AS 237/21 ER)
Source: Sozialgericht-mannheim.justiz-bw.de
2.4 – SG Kiel, decision of 16.03.2021 – S 35 AS 35/21 ER
No entitlement to additional expenses for the purchase of FFP2 masks in expedited social court proceedings, an article by attorney Helge Hildebrandt
By decision of 16 March 2021, the 35th Chamber of the Social Court of Kiel, under file number S 35 AS 35/21 ER, rejected an application for an interim injunction to compel the Kiel Job Center to provisionally provide additional funding for the purchase of FFP2 masks, because it currently sees no grounds (urgency) for issuing a regulatory order.
Contrary to previous case law on this topic, the 35th Chamber of the Social Court of Kiel does not deny the claim for an injunction on the grounds that there is no "legal obligation" to wear FFP2 masks (or comparable protective masks), but recognizes a fundamental additional need for the acquisition of FFP2 masks for the broadest possible protection of all people as well as the broadest possible self-protection, and thus ultimately follows the legal opinion of this court.
The 35th Chamber of the Kiel Social Court, however, currently sees no grounds for an injunction (urgency), because, for the reasons detailed in the ruling, it considers the additional need to be only for 8 masks per month (16 masks per month in this case), which can be covered by €12 per month (for 16 masks). For this potential additional need until the expected disbursement of the additional funds of €150.00 from the so-called Social Protection Package III pursuant to Section 70 of the German Social Code, Book II (SGB II) in May 2021 – i.e., for just over two months – the court sees no grounds for issuing a preliminary injunction. However, this legal question would have to be answered differently if the benefits from the so-called Social Protection Package III were not paid out in May 2021 and the additional need of €12 per month therefore continued for a longer period.
2.5 – Social Court Saarland, Decisions of 09.03.2021 – S 26 AS 23/21 ER, S 26 AS 26/21 ER, Decision of 12.03.201 – S 16 AS 35/21 ER
No entitlement to higher Hartz IV benefits for the purchase of FFP2 masks
The Social Court of Saarbrücken has ruled in several expedited proceedings that recipients of benefits under the German Social Code Book II (“Hartz IV”) are not entitled to higher benefits for the purchase of FFP2 masks.
The applicants had claimed an additional need of between 10 FFP2 masks per month and 20 FFP2 masks per week.
This was rejected by SG Saarbrücken in all cases.
There is no unavoidable additional need. A benefit recipient must generally cover the costs of the claimed expenses from the SGB II benefits paid out.
The decisions are not yet legally binding.
Saarbrücken Social Court, Decision of 09.03.2021 – S 26 AS 23/21 ER, S 26 AS 26/21 ER;
Saarbrücken Social Court, Decision of 12.03.2021 – S 16 AS 35/21 ER;
Saarbrücken Social Court, Decision of 17.03.2021
Source: Press release from SG Saarbrücken dated March 19, 2021
Note:
See also Kiel Social Court, decision of March 16, 2021 – S 35 AS 35/21 ER; Mannheim Social Court, decision of March 1, 2021 – S 5 AS 456/21 ER; Osnabrück Social Court, decisions of March 10, 2021 – S 50 AS 39/21 ER, S 50 AS 51/21 ER; Reutlingen Social Court, decision of March 9, 2021 – S 4 AS 376/21 ER – legally binding and decision of March 10, 2021 – S 7 AS 410/21 ER – not yet legally binding; Oldenburg Social Court, decision of March 8, 2021 – S 37 AS 48/21 ER; Karlsruhe Social Court, decisions of... March 3, 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 March 1, 2021 – S 29 AS 289/21 ER (not published); Social Court Mannheim, Decision of February 25, 2021 – S 7 AS 301/21 ER; 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 Munich, Decision of February 2, 2021 – S 13 AS 104/21 ER (not published); Social Court Lüneburg, decision of 10 February 2021 – S 23 AS 13/21 ER; regarding the German Social Code, Book XII (SGB XII): Social Court Munich, decision of 3 February 2021 – S 46 SO 29/21 ER; a. opinion: Social Court Karlsruhe, decision of February 11, 2021 – S 12 AS 213/21 ER – Hartz IV additional needs allowance of €129 per calendar month due to FFP2 masks – 20 FFP2 masks weekly for Hartz IV recipients, and most recently, the decision of the 12th Chamber of the Social Court Karlsruhe – S 12 AS 565/21 ER (quote from Juris: “A constitutionally and federally compliant guarantee of social participation most likely requires, at least until April 30, 2021, that job seekers under the conditions of the Corona pandemic continue to be provided with an average of 20 new mouth and nose protection masks per week, in accordance with the requirements of the standards FFP2 (DIN EN 149:2001), KN95, N95 or a comparable standard without an exhalation valve (continuation of: Social Court Karlsruhe, February 11, 2021, S 12 AS) 213/21 ER)..“
2.6 – SG Kiel, decision of 18.03.2021 – S 31 AS 21/21 ER
There is no urgent need for the provision of medical masks by the basic income support provider
Guidance (Editor):
The court confirms that the high-risk patient (pre-existing condition) has a claim to an order for €14.13 per month for masks from the job center according to § 21 para. 6 SGB II, but no grounds for the order, because he will receive a one-off payment of €150 in May, which could cover the pandemic-related expenses.
Note: See also attorney Helge Hildebrandt
Addendum 20.03.2021:
In a similar matter, the 31st Chamber at the Social Court of Kiel also ruled on 18.03.2021 under file number S 31 AS 21/21 ER, whereby the 31st Chamber accepted a claim for an injunction – i.e., a presumed claim of the applicant for additional benefits for self-supply with FFP2 masks – due to the applicant's pre-existing condition.
3. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
3.1 – Lower Saxony-Bremen State Social Court, Judgment of 26 January 2021 – L 8 SO 286/17 – Appeal allowed because the admissibility of an isolated rejection of an application for additional needs benefits under Chapter Three or Four of the German Social Code, Book XII (SGB XII) and the inclusion of subsequent (grant) decisions after the revocation of a benefit award pursuant to Section 86 of the German Social Courts Act (SGG) (by analogy) has not yet been decided by the highest court
Regarding the relationship between an application for recognition of additional needs pursuant to Section 30 of the German Social Code, Book XII (SGB XII) and the granting of ongoing benefits under Chapters Three or Four of the German Social Code, Book XII (SGB XII)
Principle (Juris)
1. An application for recognition of additional needs (here due to costly nutrition) pursuant to Section 30 of the German Social Code, Book XII (SGB XII) is an application for (higher) benefits, which the administration cannot reject in isolation, i.e., independently of the examination of whether ongoing social assistance benefits to secure subsistence are to be granted (continuation of the decision of the Lower Saxony-Bremen State Social Court of 11 December 2014 – L 8 SO 106/14 B – juris para. 7).
2. In the case of a (partial) revocation of a grant of basic income support benefits under Chapter Four of the German Social Code, Book XII (SGB XII), challenged by an isolated action for annulment (§ 54 para. 1 SGG), grant notices issued before the issuance of the objection decision and relating to subsequent periods do not become the subject of the objection proceedings by analogy to § 86 SGG (distinction from BSG of 17 June 2008 – B 8 AY 11/07 R – juris para. 10; BSG of 14 April 2011 – B 8 SO 12/09 R – juris para. 11; BSG of 9 December 2016 – B 8 SO 14/15 R – juris para. 11).
Source: www.rechtsprachung.niedersachsen.de
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – Note on: Federal Administrative Court, First Senate, Judgment of 20 August 2020 – 1 C 28/19
Author: Prof. Dr. Uwe-Dietmar Berlit, Presiding Judge of the Federal Administrative Court
Reference: jurisPR-BVerwG 6/2021 Note 1
Publisher: Association of Federal Judges at the Federal Administrative Court
Suggested citation: Berlit, jurisPR-BVerwG 6/2021 Note 1
Deemed service in the event of unsuccessful service of an asylum rejection to an address communicated by a public authority
Guiding principles
1. The deemed service provision of Section 10 Paragraph 2 Sentence 2 of the Asylum Act is based on an address of the foreigner that has been correctly communicated to the serving authority by a public body; it is not necessary that this address is still current at the time of the attempted service.
2. Information stored in the Central Register of Foreigners is not communicated to the Federal Office as the asylum authority within the meaning of Section 10 Paragraph 2 Sentence 2 of the Asylum Act.
3. The statement in a notice of appeal that the action must be “written in German” does not render it incorrect (cf. BVerwG, Judgment of 29.08.2018 – 1 C 6/18 – Buchholz 310 § 58 VwGO No. 94).
Continue reading on Juris: www.juris.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – The poor bear the greater risk and the greater burdens in the Corona crisis, but receive the least help.
The social component remains largely ignored in the medically driven debate, which also weakens our defense strategy. I have explained this connection in detail on three pages at www.heimstatt-esslingen.de .
In summary:
The pandemic has made the poor poorer and sicker. A significant contributing factor to this is the poverty policy ignorance of key actors. The pandemic has exposed social division as a chronic illness in our society, one that cannot be solved by virologists.
Frieder Claus Independent Hartz IV Advice Heimstatt Esslingen eV.
5.2 – Sickness benefit can reduce parental allowance plus
The Federal Social Court (BSG) has ruled that sick pay must be credited against the parental allowance entitlement for months in which parental allowance plus is claimed.
Parental allowance plus is paid to parents who are raising their child jointly and return to part-time work early. If one parent's income from part-time work is lost due to illness while receiving parental allowance plus, the substitute sick pay is deducted from the parental allowance plus. This can reduce the parental allowance plus to the minimum parental allowance. This was decided by the Federal Social Court (BSG).
Continue to the source: www.juris.de
5.3 – Impact of measures to contain the coronavirus SARS-CoV-2 on the residence of immigrant skilled workers
As of March 17, 2021
Source: www.netzwerk-iq.de
5.4 – Sanctioned to leave
Departure as a way of overcoming the need for assistance under the Asylum Seekers' Benefits Act?
This year, the Federal Constitutional Court intends to decide on a constitutional complaint regarding the benefit reductions in the Asylum Seekers' Benefits Act (AsylbLG) (Case No.: 1 BvR 2682/17).
The Federal Constitutional Court already developed the fundamental standard for the admissibility of sanctions in guaranteeing a dignified minimum standard of living (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law) in its decision on sanctions under Book II of the German Social Code (SGB II). Measured against these standards, it is already doubtful whether the reasons put forward by the legislature to legitimize sanctions under the Asylum Seekers' Benefits Act (AsylbLG), namely promoting the duty to cooperate in asylum and residence law and preventing "abusive benefit receipt," meet constitutional requirements.
Source: fassungsblog.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
