1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, judgment of May 12, 2021 – B 4 AS 88/20 R
Basic income support for job seekers – additional needs – tablet computers – school lessons
Guiding principle (Editor)
1. The costs for the tablet cannot be considered as an additional need, because the conditions of § 21 para. 6 SGB II in the version applicable until 31.2020 for a hardship additional need are not met.
2. The costs for purchasing the tablet are not a recurring expense. Rather, the need arose only once, at the time of purchase.
Source: www.bsg.bund.de
Editor's note:
Of course, the 4th Senate, that's exactly what I expected, but the 14th Senate of the Federal Social Court (BSG) holds a different opinion:
"In two rulings (dated May 8, 2019 – B 14 AS 6/18 R, B 14 13/18 R), the Federal Social Court decided that the standard benefits do not adequately cover the needs for school and education and therefore must be provided as separate benefits. Due to the lack of other regulations in the Social Code, these benefits should be granted as a hardship allowance. The Federal Social Court clarified that even items purchased only once but required on an ongoing basis qualify as hardship allowances under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), even though this provision appears at first glance to exclude one-off needs."
Quoted from tacheles-sozialhilfe.de
Note:
Reimbursement of costs for school PCs/tablets: Report from the BSG on May 12, 2021 - A contribution by Herbert Masslau, who attended the BSG meeting as an observer.
More information: www.herbertmasslau.de
Comment by Harald Thomé / Tacheles:
The decision is incomprehensible in terms of its content. Comprehensibility cannot be expected even if the court presents a comprehensive justification in two or three months. The Federal Social Court (BSG) has ruled exactly the opposite in its school textbook rulings, choosing the path of constitutionally compliant interpretation. The BSG could have taken the same approach with regard to school computers. In this decision of May 12, 2021, concerning school computers, the ruling is based solely on the letter of the law and, at best, is unfavorable to the benefit recipients. This is neither coherent nor comprehensible and only makes it clear that the plaintiffs are at the mercy of the court's whims. Even the legislature is more innovative and forward-thinking in anticipation of a favorable decision from the BSG; see the justification for the amendment to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) (https://t1p.de/m6o8, page 35, point 5, number 3, letter c).
It would be desirable for the Federal Ministry of Labor and Social Affairs (BMAS) to issue a directive waiving any claims for reimbursement of digital devices. While this would likely only affect a four-figure number of people, it would still be significant. Politicians and associations should follow up on this.
1.2 – BSG, judgment of May 12, 2021 – B 4 AS 66/20 R
Basic income support for job seekers – claim for compensation – unlawfully provided benefits – legal guardian – causality
Guiding principle (Editor)
: 1. Job centers must not shift the blame for their own mistakes onto caseworkers.
2. As a quasi-tortious claim, the claim for compensation under Section 34a Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) requires that the conduct of the person against whom the claim is asserted, in accordance with the specific social law theory of the essential condition, was the cause of the unlawful provision of benefits. Here, neither an active action (cooperation in submitting the application) nor an omission (failure to review the bank statements and inform the defendant) by the plaintiff was the essential cause of the unlawful provision of benefits.
3. The conduct of the defendant (JobCenter) was of paramount importance in the evaluation.
4. Had the benefit application been processed properly, the applicant's statement of two years of employment subject to social security contributions, which indicated an entitlement to unemployment benefit I (Alg I), should have prompted the authorities, pursuant to Section 12a Paragraph 1 Sentence 1 and Section 5 Paragraph 3 of the German Social Code, Book II (SGB II), to further examine the facts before granting the final benefit. This would have prevented the unlawful benefit award.
5. This misconduct by an authority considered to be competent and obligated to provide advice (pursuant to Section 14 of the German Social Code, Book I) and to administer social benefits (pursuant to Section 17 of the German Social Code, Book I) outweighs any possible misconduct by the plaintiff as a volunteer guardian.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Saxony-Anhalt, Judgment of 15 April 2021 – L 5 AS 391/19 ZVW
Principle (Juris)
1. The appropriate apartment size for two persons in the state of Saxony-Anhalt is 60 m².
2. The establishment of three comparison areas in the Harz district is not objectionable. The chosen criteria are suitable for representing homogeneous living and social spaces. Furthermore, the comparison areas correspond to the central areas according to the 2010 State Development Plan. It is therefore irrelevant that the reassignment of the comparison areas may result in a lowering of the previous adequacy threshold in the specific comparison area.
3. The housing cost guidelines, based on the 2012 rent survey and as evaluated in the 2020 correction report, are based on a coherent concept for the period from March to August 2013. The official duty to investigate is limited to a comprehensible procedural review. A detailed examination of specific issues is not required if the plaintiffs raise no substantiated objections to either the original concept or the revised concept as amended in the appeal proceedings.
4. The continuation of the concept for periods from August 2014 onwards, in accordance with the price index for the development of rental costs in Saxony-Anhalt, is not objectionable.
Source: www.landesrecht.sachsen-anhalt.de
2.2 – LSG Saxony-Anhalt, Judgment of 15.04.2021 – L 5 AS 526/16
Principle (Juris)
1. The appropriate apartment size for two persons in the state of Saxony-Anhalt is 60 m².
2. The establishment of four comparison areas in the Salzland district is not objectionable. The chosen criteria are suitable for representing homogeneous living and social spaces. Furthermore, the comparison areas correspond to the central regions according to the 2010 State Development Plan.
3. The KdU guideline based on the 2012 rent survey in the evaluation of the 2019 correction report is based on a coherent concept for the period from June to November 2013.
a. A sufficient number of data sets were available for evaluation, including for determining the cold operating costs.
b. There are also no concerns regarding the representativeness of the collected data. In particular, it has not been substantiated, nor is it apparent, that landlord status ("institutional and so-called small landlords") is a relevant factor determining rent prices in the Salzland district.
c. The simple rent index for the city of Aschersleben also does not justify any doubts about the validity of the concept, as the data sets collected there are not comparable. Furthermore, the assertion that landlord status is decisive for the differences is purely speculative. In particular, the average housing costs for "standard amenities" cannot be compared with the adjusted net rents from the rent survey, which are based on the lower market segment.
Source: www.landesrecht.sachsen-anhalt.de
2.3 – LSG Mecklenburg-Vorpommern, decision of 29.04.2021 – L 14 AS 135/20 NZB
Principle (Juris):
The subject of the dispute cannot be broken down into individual calculation elements (here: additional payment for water/sewage).
A decision rejecting the assumption of an ancillary cost arrears payment is to be regarded as a rejection of an amendment to the current grant decision in favor of the benefit recipient within the framework of Section 48 SGB X.
If the amount of the benefit is already the subject of preliminary or court proceedings in the month in which it is due, such a decision becomes the subject of the pending proceedings in accordance with Sections 86, 96 of the Social Court Act (SGG).
Source: www.landesrecht-mv.de
2.4 – LSG Munich, Judgment of 11 November 2020 – L 11 AS 401/20
Title:
Social Court Proceedings: Receipt of an appeal not bearing a qualified electronic signature in the court's electronic court and administrative mailbox (EGVP)
Principle (Juris):
1. If an appeal not bearing a qualified electronic signature is received in a court's electronic court and administrative mailbox (EGVP), the plaintiff must be informed of this. (Para. 18)
2. If, taking into account the proper course of business at the court, it can be assumed that a given notice would have enabled the plaintiff to file the appeal in due form, the granting of reinstatement to the previous status may also be considered ex officio. (Paragraph 18)
3. To assess the viability of self-employment, a viability certificate from an expert body may be required when granting integration assistance to self-employed individuals. (Paragraph 18)
Source: www.gesetze-bayern.de
2.5 – LSG Schleswig-Holstein, decision of 6 May 2021 (L 6 AS 64/21 B ER):
Principle by Dr. Manfred Hammel:
The legal remedies information provided by the job center within a reimbursement notice is defective if the persons concerned were not also informed that they – and not only a lawyer – have the option of lodging an objection via an electronic document bearing a qualified electronic signature.
Opening up within the meaning of Section 36a Paragraph 1 SGB I means enabling the option of using digital government addresses by all legal and natural persons involved in the administrative and objection procedure.
The actual setup of a special electronic mailbox for public authorities (beBPo) at the job center, which citizens can easily access via an EGVP client and lawyers via their special lawyer mailbox (beA), automatically opens access via the special mailbox for public authorities (beBPo). This EGVP address book is visible to everyone.
A job center is not permitted to restrict access for electronic communication in benefit matters to a specific group of potential senders. Rather, this agency responsible for administering benefits under Book II of the German Social Code (SGB II) must inform its clients about this option for legally binding communication, at least in general terms, within the information on legal remedies.
2.6 – LSG NRW, Decision of 06.05.2021 – L 21 AS 525/21 B ER
No additional need for FFP2 masks despite mandatory mask-wearing
The new legal obligation to wear FFP2 masks does not mean that recipients of SGB II benefits can successfully claim additional needs in expedited proceedings.
Continue on Juris
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Dortmund, decision of April 14, 2021 (S 85 AS 623/21 ER):
Guiding principle by Dr. Manfred Hammel:
On the denial of the existence of a community of need according to § 7 para. 3 no. 3c) in conjunction with para. 3a SGB II, even if the applicant has a child in common with her landlord and lives in the same building as him, but in a separate apartment furnished entirely by her.
3.2 – SG Speyer, Judgment of 22.04.2021 – S 15 AS 117/19
Sanction notices issued pursuant to Sections 31a Paragraph 1 Sentences 1, 2 and 3, 31b Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), in conjunction with Section 31 Paragraph 1 SGB II, are unlawful if the affected parties were not informed of the legal consequences stipulated in the judgment of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16) and were otherwise unaware of them. This applies in particular to sanctions relating to events prior to November 5, 2019
Principle (Juris):
1. A breach of duty under Section 31 of the German Social Code, Book II (SGB II) only exists if the employable benefit recipient has been previously informed in writing about the legal consequences or is aware of them. The legal consequences of a breach of duty must therefore be fully explained (or known), including all possibilities to mitigate or completely avoid the legal consequences of the sanctionable offense under certain circumstances.
2. This also includes the modifications ordered by the Federal Constitutional Court in its judgment of November 5, 2019 (1 BvL 7/16), which have the force of law (§ 31 para. 2 of the Federal Constitutional Court Act). In the absence of corresponding limitations in the operative part of the judgment, these modifications apply retroactively from the date of entry into force of the provisions declared incompatible with the Constitution (following the decision of the Social Court of Hamburg, judgment of September 24, 2020 – S 58 AS 369/17 –, para. 37 et seq.).
3. The retroactive application of the legal consequences established by the Federal Constitutional Court for a breach of duty under Section 31 Paragraph 1 of the German Social Code, Book II (SGB II), means that those affected should have been informed of these legal consequences or should have been aware of them in order for a reduction in their benefit entitlement to occur. The fact that it was objectively impossible for the authorities to provide such information regarding sanctionable offenses before the Federal Constitutional Court's ruling does not alter this.
4. It follows that all reduction notices based on Sections 31a Paragraph 1 Sentences 1, 2 and 3, 31b Paragraph 1 Sentence 3 SGB II in conjunction with Section 31 Paragraph 1 SGB II, which relate to facts prior to November 5, 2019, are unlawful and – insofar as they are not legally binding (cf. Section 40 Paragraph 3 Sentence 1 No. 1 SGB II) – must be revoked.
Note:
See also SG Berlin, judgment of 27.01.2021 – S 114 AS 3501/17
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Baden-Württemberg Judgment of 25 March 2021 – L 7 SO 3429/20
Principle (Juris):
The principle of subsidiarity in Section 2 of the German Social Code, Book XII (SGB XII) does not constitute an isolated exclusionary rule. A recipient of benefits is not obligated to agree on an installment payment plan with the creditor regarding the annual waste disposal fee in order to spread it over twelve months.
Source: lrbw.juris.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Saxon State Social Court, decision of 03.03.2021 – L 8 AY 8/20 B ER
Social court proceedings – preliminary legal protection – regulatory order – claim for an order – asylum seeker benefits – restriction of entitlement – unenforceability of measures terminating residence – lack of cooperation in obtaining a passport – duration and extent of the benefit restriction – constitutionality
Principle (Juris):
1. Restricted benefits under Section 1a of the Asylum Seekers' Benefits Act (juris: AsylbLG) must be granted in accordance with the principle of proportionality. In preliminary injunction proceedings, the duration is limited to three months. The amount of the benefit restrictions may not exceed 30 percent of the basic benefits under Section 3 of the Asylum Seekers' Benefits Act (following the Federal Constitutional Court's decision of November 5, 2019 – 1 BvL 7/16 = BVerfGE 152, 68). (Paragraph 56)
Source: Juris
Note: a. Opinion:
Osnabrück Social Court, judgment of April 9, 2021 – S 44 AY 77/19 – The Federal Constitutional Court's statements regarding the lack of proof of the suitability of higher sanctions for the purpose of reintegration into work under Book II of the German Social Code (SGB II) in its decision of November 5, 2019 (1 BvL 7/16) are not applicable to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), as limiting the amount of the benefit reduction to 30% is not possible either through interpretation or by developing the law (confirmation of: Osnabrück Social Court, decision of January 27, 2020, S 44 AY 76/19 ER).
5.2 – LSG Baden-Württemberg Judgment of 15 March 2021, L 7 AY 390/21 ER-B
Principle (Juris):
A residency requirement does not automatically compel uninterrupted residence in the area specified by the requirement; rather, the foreigner may temporarily leave it without permission. The obligation to provide benefits by the locally responsible benefit provider pursuant to Section 10a Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) only ceases when habitual residence is established in another location.
Source: lrbw.juris.de
5.3 – SG Neubrandenburg, Decision of 05.03.2021 – S 6 AY 3/21 ER
Matters under the Asylum Seekers' Benefits Act
Principle (Juris):
Concerns regarding the constitutionality of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG can only be raised within the framework of a referral decision pursuant to Article 100 Paragraph 1 GG.
Source: www.landesrecht-mv.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Child benefit applications from EU citizens: Federal Data Protection Commissioner sees misconduct by family benefits offices, which promise to improve
Continue reading: ggua.de
6.2 – New rent ceilings for Kiel, retroactive to 01.01.2021, an article by attorney Helge Hildebrandt
More information: sozialberatung-kiel.de
6.3 – Do some debts owed to the job center expire? An article by lawyer Gesa Hermsen
Did you receive benefits from the job center many years ago, and now you've received a letter from the job center's collection department demanding repayment of benefits based on a decision you received years ago and have long forgotten about? Are you currently receiving benefits from the job center but have outstanding debts to them from many years ago that were never claimed?
In a judgment issued on March 5, 2021, which has not yet been published, under file number B 11 AL 5/20, the Federal Social Court ruled under what conditions the claim of the job center may be time-barred.
More information: www.anwalt.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
