1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court, judgment of November 26, 2020 (B 14 AS 13/19 R):
Guiding principle Dr. Manfred Hammel:
Due to the absence of a deviating regulation in the SGB II, Sections 60 et seq. of the German Social Code, Book I (SGB I) ("Cooperation of the person entitled to benefits") also have full validity for the procedure for determining employability pursuant to Section 44a Paragraphs 1 to 3 of the SGB II, provided that justified doubts about the employability of a person in need of assistance cannot be dispelled without their cooperation.
This is not contradicted by the seamless transition provision arising from Section 44a Paragraph 1 Sentence 7 of the German Social Code, Book II (SGB II).
The denial of benefits due to a lack of cooperation in clarifying employability must be distinguished from the substantive rejection of benefits under Sections 19 et seq. of the German Social Code, Book II (SGB II). If cooperation is subsequently provided, benefits can be paid retroactively.
Section 44a paragraph 1 sentence 7 of the German Social Code, Book II (SGB II) does not have the function of abolishing the necessity of investigations, the relevance of evidence, and the obligations to cooperate with regard to the question of whether employability exists.
The failure to comply with obligations to cooperate does not, in itself, justify the legal consequence of denying social benefits as stipulated in Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I).
Furthermore, a causal link and a close temporal connection must exist between the specific omitted act of cooperation and significant difficulties encountered by the social security agency in establishing the facts. If a breach of the duty to cooperate does not lead to a significant impediment to the investigation, this breach of duty remains without consequences. However, this does not apply if such an omission renders the investigation of the facts impossible.
A period exceeding two years is of great importance when assessing employability under Sections 8 and 44a Paragraph 1 of the German Social Code, Book II (SGB II), which corresponds to the reduction in earning capacity under Section 43 of the German Social Code, Book VI (SGB VI). This follows from the time limit provision stipulated in Section 102 Paragraph 2 of the SGB VI with regard to reduction in earning capacity pensions.
Medical reports that are older than two years cannot usually be used to assess current employability.
The job center's persistent insistence on the complete submission of a specific medical report based solely on the file raises doubts about the proper exercise of discretion by this SGB II agency. Numerous other options exist to clarify the question of employability – for example, through an expert examination of the ALG II recipient.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Saxony-Anhalt, Judgment of 26.11.2020 – L 4 AS 173/18 ZVW and L 4 AS 174/18 ZVW – Appeal allowed
Principle (Juris)
1. An old-age pension granted by the Pension Fund of the Russian Federation to a person born before 1967 exhibits the same typical characteristics as a German old-age pension. Receipt of this pension leads to exclusion from benefits under Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II). The Russian old-age pension is administered and granted by a public institution, is contingent upon the payment of contributions and reaching a certain age, and, according to the Russian legislature, is intended to secure the livelihood in old age in place of wages.
2. The fact that the retirement age in the Russian Federation was lower than in Germany does not preclude comparability with a German old-age pension. It was generally 60 years for men and 55 for women. Furthermore, numerous exceptions – such as employment in regions north of the Arctic Circle – led to an even earlier retirement of up to 10 years for practically a third of the working population.
3. Comparability with the German old-age pension system is not precluded by the fact that Russian pension payments were and are low by German standards, and that employment among pensioners is not uncommon. It can generally be assumed that in the Russian Federation, too, working life ends upon retirement.
4. The provisions of Section 107 Paragraph 1 of the German Social Code, Book X (SGB X) do not preclude the recovery and reimbursement of benefits (and contributions) under Book II of the German Social Code (SGB II), because the SGB II benefit provider entitled to reimbursement can only demand reimbursement from the social assistance provider pursuant to Section 105 Paragraph 3 of the SGB X from the point in time at which the latter becomes aware that the conditions for its obligation to provide benefits are met. The SGB II benefit provider's knowledge is not attributable to the social assistance provider in the reimbursement relationship.
Source: www.landesrecht.sachsen-anhalt.de
2.2 – Mecklenburg-Vorpommern State Social Court, decision of 22 February 2021 – L 8 AS 287/20 B ER
Section 28 Paragraph 5 of the German Social Code, Book II (SGB II) is not unconstitutional – the need for legal protection does not cease to exist due to the end of the school year
Guidance (Editor)
1. The Federal Constitutional Court has not yet made a decision regarding the compatibility of Section 28 Paragraph 1 of the German Social Code, Book II (SGB II) with the Basic Law.
2. The unconstitutionality of Section 28 Paragraph 5 of the German Social Code, Book II (SGB II), as alleged by the Job Center (cf. regarding the identical provision of Section 34 of the German Social Code, Book XII (SGB XII): decision of the Federal Constitutional Court of July 7, 2020, file number: 2 BvR 696/12), does not preclude the application of the provision.
3. An application for learning support is not inherently limited to the respective school year. This could only be justified if the sole purpose of learning support were to achieve the learning objective of "promotion to the next grade level," so that upon a student's promotion to the next grade level, the learning objective would be achieved and the application for learning support would then be rendered moot. However, the purpose of learning support is not limited to this learning objective. Rather, achieving a sufficient level of performance and acquiring general basic knowledge and skills (Section 13, Paragraph 1, Sentences 2 to 4 of the Mecklenburg-Western Pomerania School Act) are also purposes of learning support. Achieving these learning objectives is not tied to the school year but extends over the entire learning period in primary school, i.e., from grades 1 to 4.
Source: www.landesrecht-mv.de
2.3 – 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.
Full text available here: sozialberatungkiel.files.wordpress.com
2.4 – Saxon State Social Court, decision of 26 January 2021 – L 8 AS 748/20 B ER
Basic income support for job seekers – consideration and calculation of income – self-employment – business income – Corona emergency aid
Principle (Juris):
Corona aid is not operating income within the meaning of Section 3 Paragraph 1 Sentence 2 of the German Social Code, Book II (juris: AlgIIV 2008).
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Munich, decision of 10 March 2021 – S 46 AS 369/21 ER
FFP2 masks and SGB II
Principle (Juris):
For a hardship allowance pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), the individual case must be taken into account, and the need that is objectively unavoidable in this life situation must be considered.
Note:
See also Schleswig-Holstein Higher Social Court, decision of March 29, 2021 – L 6 AS 43/21 B ER; Lower Saxony-Bremen Higher Social Court, decision of March 23, 2021 – L 13 AS 125/21 B ER; Nuremberg Social Court, decision of March 23, 2021 – S 22 AS 182/21 ER; Kiel Social Court, decision of March 18, 2021 – S 31 AS 21/21 ER; Kiel Social Court, decision of March 16, 2021 – S 35 AS 35/21 ER; Saarbrücken Social Court, decision of March 12, 2021 – S 16 AS 35/21 ER; Saarbrücken Social Court, decision of... March 9, 2021 – S 26 AS 23/21 ER, S 26 AS 26/21 ER; Social Court Speyer, Decision of March 12, 2021 – S 3 AS 232/21 ER; Social Court Munich, Decision of March 10, 2021 – S 46 AS 369/21 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: Social Court Munich, decision of... 03.02.2021 – S 46 SO 29/21 ER; a. Opinion: SG 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)..“
3.2 – SG Cottbus, judgment of January 15, 2021 – S 41 AS 1469/18
Guidance (Attorney Dr. Jens-Torsten Lehmann)
Sanction and legal consequences information: unfamiliar terms (here: "negative application behavior") must be explained in a way that is understandable to (lay) people
Source: ra-jtlehmann.de
3.3 – Social Court Kiel, decision of March 18, 2021 (S 31 AS 21/21 ER):
Principle by Dr. Manfred Hammel:
Regarding the affirmation of the grounds for an injunction asserted by a 56-year-old applicant (at-risk patient due to bronchial asthma) in the expedited proceedings before the social court, citing Section 21 Paragraph 6 of the German Social Code, Book II (existence of an indispensable necessity to wear high-quality face masks while simultaneously lacking the possibility of realizing savings potential or receiving contributions from third parties), and regarding the denial of a claim for an injunction in the case of credibly demonstrated additional monthly costs in the amount of EUR 14.13 due to the expected compensation payment of EUR 150 for the month of May 2021.
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – SG Frankfurt, Judgment of 15.03.2021 – S 20 SO 32/17 – Direct appeal is permitted
Social assistance, integration assistance, legal changes through the BTHG (Federal Participation Act)
Principle (Juris):
With the entry into force of the BTHG, the desired benefit of motor vehicle assistance according to §§ 53, 54 SGB XII can no longer be granted from 1 January 2020, because these regulations no longer apply.
The entitlement to benefits must now be based on the provisions of Sections 114, 113 Paragraph 2 No. 7, 83 SGB IX; therefore, it is a new social benefit.
The temporal break associated with the introduction of the regulations eliminates the need for legal protection.
Source: www.rv.hessenrecht.hessen.de
Legal tip:
Different view: Lower Saxony-Bremen State Social Court, decision of November 10, 2020, file number: L 8 SO 84/20 ER
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – Half of the legal aid fee for a review procedure cannot be credited towards an expedited social court proceeding, a contribution by attorney Helge Hildebrandt
More information: sozialberatung-kiel.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
