1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court, Judgment of December 8, 2020 (B 4 AS 30/20 R)
Guiding principle Dr. Manfred Hammel:
In the case of a (Master's) degree program designed to be completed alongside employment, the exclusion rule arising from Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) does not apply.
This (additional) training does not fully utilize the trainee's labor, nor is this phase eligible for funding under Section 2 Paragraph 5 Sentence 1 of the Federal Training Assistance Act (BAföG).
The monthly payments of EUR 800 each received by trainees here from the “student loan” taken out at a private bank do not constitute income to be taken into account by the job center as reducing their entitlement in accordance with Section 11 Paragraph 1 Sentence 1 SGB II.
There is no assumption here of an "increase in value", i.e., a positive change in the financial situation of the borrowers.
A loan that must be fully repaid to the lending bank, as a benefit provided only temporarily, does not constitute income.
This is only the case if the funds in question remain with a person in need for their final, completely unrestricted use.
According to Section 11 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), only "inflows from social benefits granted as loans, insofar as they serve to cover living expenses," but not funds obtained from private loans, are to be considered income by the SGB II provider in accordance with Section 11 Paragraph 1 Sentence 1 of the SGB II.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Saxony-Anhalt, decision of February 16, 2021, L 2 AS 658/20 B
Guiding principle of lawyer Claudia Zimmermann:
It is not frivolous within the meaning of § 114 para. 2 of the German Code of Civil Procedure to file separate lawsuits for different approval periods, because a separate examination of the claim is required for each period of dispute.
Source: www.razimmermann.de
2.2 – LSG Saxony-Anhalt, decision of 27.01.2021 – L 2 AS 24/21 B ER
Matters under the German Social Code, Book II (SGB II) (AS) – Sanction for breach of duty – Information on legal consequences before the decision of the Federal Constitutional Court
Principle (Juris):
A statement of legal consequences that correctly and completely reflects the legal situation regarding sanctions before the decision of the Federal Constitutional Court (Judgment of November 5, 2019 – 1 BvL 7/16) does not subsequently become incorrect or incomplete due to the requirements of the Federal Constitutional Court for the further application of the sanction provisions.
Source: www.landesrecht.sachsen-anhalt.de
Legal tip:
a. View probably held by the Social Court of Hamburg, judgment of 24 September 2020 – S 58 AS 369/17, see also the recent Social Court of Berlin, judgment of 27 January 2021 – S 114 AS 3501/17
Harald Thomé's comment:
The decision of the Higher Social Court of Saxony-Anhalt cannot be followed; in this case, there was no legally correct notification of the legal consequences. The decision of the Federal Constitutional Court is binding, and it can and must be expected that a social security agency implements it immediately. It must also be expected that the social courts will protect benefit recipients and, in such a case of grossly unlawful conduct, hold the benefit providers accountable and not seek ways to soften the blow of their unlawful actions.
2.3 – Lower Saxony-Bremen State Social Court, decision of 23 March 2021 – L 13 AS 125/21 B ER
Basic income support for job seekers – preliminary legal protection – additional needs allowance pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) – medical protective masks – Corona pandemic
Regarding the entitlement to additional needs benefits under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) for the procurement of medical protective masks, the claim is denied here
Source: www.rechtsprachung.niedersachsen.de
2.4 – Schleswig-Holstein Higher Social Court, decision of 29 March 2021 – L 6 AS 43/21 B ER
No additional need for FFP2 masks in the expedited procedure
Currently, there is no urgent need for recipients of unemployment benefit II to enforce an additional allowance for the purchase of FFP2 masks in an expedited court proceeding.
The obligation to wear medical protective masks in many areas of public life and the right to protect oneself from infection with the coronavirus by wearing FFP2 masks creates an additional need that is not included in the standard rate under the German Social Code, Book II (SGB II).
Depending on personal circumstances and the current cost of masks of a corresponding standard, additional costs of around 12 euros per month can currently be expected.
However, since recipients of unemployment benefit II received a one-off payment of 150 euros in May 2021, among other things to cover these additional costs, and since they were also able to receive 10 FFP2 masks free of charge until the beginning of March 2021, this additional need does not justify the use of urgent legal protection.
More information: www.schleswig-holstein.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Karlsruhe, decision of 24 March 2021 – S 12 AS 711/21 ER
SG Karlsruhe: Corona subsidy of 150 euros unconstitutional
The federal government's planned coronavirus supplement for recipients of basic income support is too low and unconstitutional, according to the Social Court in Karlsruhe. A single mother had unsuccessfully applied to the job center for FFP2 masks.
Full text here, thanks to attorney Volker Gerloff for the tip: www.harald-thome.de
Attorney Volker Gerloff:
Even in the Federal Constitutional Court's ruling on standard benefit rates, social courts were urged to take into account short-term price increases, etc., due to the extremely low standard benefit rates, and to interpret the norms in accordance with the applicable legal provisions.
Federal Constitutional Court, 23 July 2014, 1 BvL 10/12, para. 144
Source: twitter.com
3.2 – SG Darmstadt, decision of 23.03.2021 – S 9 AS 151/21 ER
Guiding principle (Editor):
The JobCenter will not grant any additional funding for the purchase of FFP2 masks.
Source: www.rv.hessenrecht.hessen.de
Note:
See also Schleswig-Holstein Higher Social Court, decision of 29 March 2021 – L 6 AS 43/21 B ER; Lower Saxony-Bremen Higher Social Court, decision of 23 March 2021 – L 13 AS 125/21 B ER; Kiel Social Court, decision of 18 March 2021 – S 31 AS 21/21 ER; Kiel Social Court, decision of 16 March 2021 – S 35 AS 35/21 ER; Saarbrücken Social Court, decision of 12 March 2021 – S 16 AS 35/21 ER; Saarbrücken Social Court, decision of 9 March 2021 – S 26 AS 23/21 ER, S 26 AS 26/21 ER; Speyer Social Court, decision of March 12, 2021 – S 3 AS 232/21 ER; Social Court Frankfurt/Main, Decision of March 9, 2021 – S 9 AS 157/21 ER; Social Court Landshut, Decision of March 9, 2021 – S 7 AS 106/21 ER; Social Court Mannheim, Decision of March 1, 2021 – S 5 AS 456/21 ER; Social Court Osnabrück, Decisions of March 10, 2021 – S 50 AS 39/21 ER, S 50 AS 51/21 ER; 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 Braunschweig, decision of February 26, 2021 – S 22 AS 46/21 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 face 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 (continued from: Social Court Karlsruhe, February 11, 2021, p. 12) AS 213/21 ER)..“
3.3 – SG Landshut, decision of 09.03.2021 – S 7 AS 106/21 ER
No additional allowance will be granted with regard to the applicant's provision of FFP2 masks.
Guiding principle (Editor):
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 to save money in other areas of life.
3.4 – Social Court Nordhausen, judgment of 16 February 2021, S 19 AS 515/19
Principle by Attorney Claudia Zimmermann:
The 20 percent tolerance range developed by case law for determining the reasonable fee under Section 14 Paragraph 1 Sentence 1 of the German Lawyers' Fees Act (RVG) also applies to objection proceedings against the assessment of a reminder fee. Therefore, there is no "fixed fee amount" (following the rulings of the Social Court of Nordhausen, judgment of November 7, 2018, S 24 AS 1413/17; and the ruling of the Social Court of Nordhausen, order of October 5, 2018, S 11 AS 734/18).
Source: www.razimmermann.de
4. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
4.1 – Lower Saxony-Bremen State Social Court, Judgment of 25 March 2021 – L 8 AY 33/16 – Appeal allowed
Restriction of entitlement under Section 1a AsylbLG due to entry for the purpose of receiving benefits and in case of material hardship abroad
1. A prerequisite for the restriction of benefits under Section 1a No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version or Section 1a Paragraph 2 Sentence 1 of the AsylbLG is that the receipt of benefits was the primary motivation for entering Germany. All specific circumstances of the individual case must be taken into account when assessing the motivation.
2. If entry into Germany is undertaken to end an unavoidable material hardship in the previous country of residence, the additional motive of securing one's livelihood through state benefits may not be considered so decisive as to justify a restriction under Section 1a No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version or Section 1a Paragraph 2 Sentence 1 of the AsylbLG. This is generally to be assumed if the person entitled to benefits was exposed to an extreme material hardship before entry, which is equivalent to a serious risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (CFR)/Article 3 of the European Convention on Human Rights (ECHR).
3. The restriction of entitlement under Section 1a No. 2 AsylbLG (old version) or Section 1a Paragraph 3 Sentence 1 AsylbLG requires misconduct on the part of the benefit recipient that is the sole cause of their non-deportation. The requirement of causality is only met if no circumstances outside the benefit recipient's sphere of responsibility are also contributing to the non-execution of the deportation (cf. Federal Social Court, judgment of February 27, 2019 – B 7 AY 1/17 R – juris para. 27).
Source: www.rechtsprachung.niedersachsen.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Schleswig-Holstein State Social Court: Entitlement to a laptop or tablet for home schooling for each individual child in the household receiving benefits
An article by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
5.2 – Legal consequences of a failure to hold a personal hearing in the official asylum procedure for the asylum court proceedings
If the Federal Office has failed to personally hear the applicant in the official asylum procedure, the court may, in the legal proceedings, either conduct the hearing itself while ensuring, among other things, the necessary confidentiality, allow the Federal Office for Migration and Refugees the opportunity to conduct the omitted hearing, or overturn the contested inadmissibility decision so that the Federal Office can make a new decision on the asylum application after a flawless procedure.
In exercising its broad procedural discretion, the court must consider the specific circumstances of the individual case, in particular the length of the proceedings to date and the extent of the necessary fact-finding. This was decided today by the Federal Administrative Court in Leipzig.
Further information: www.juris.de
5.3 – Hartz IV standard rate 2021 insufficient – Decision of the Social Court Karlsruhe of 24 March 2021, file no. S 12 AS 711/21 ER, article by attorney Lars Schulte Bräucker
Source: www.anwalt.de
5.4 – Job Center: Excessive requirements for proof of corona-related income loss for a master hairdresser
The requirements for proving the lack of income for the granting of benefits under the German Social Code Book II (“Hartz IV”) in the case of a master hairdresser's income loss due to the coronavirus pandemic should not be too high.
Osnabrück Social Court, 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.
www.rechtsprechung.niedersachsen.de and
www.sozialgericht-osnabrueck.niedersachsen.de
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Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
