1. Decisions of the Federal Social Court on basic security according to (SGB II) and on social assistance (SGB XII)
1.1 – Federal Social Court, judgment of January 27, 2021 (B 14 AS 42/19 R):
Principle Dr.
Manfred Hammel A right of residence according to Article 10 of Regulation (EU) No. 492/2011 conflicts with an exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 No. 2b) SGB II.
The right to equal treatment of children of nationals of EU states who are (were) employed in the federal territory, provided they also live in Germany, to participate in general education under the same conditions as nationals of the EU state of residence is conveyed to both children as well as the parents caring for them a material right of residence.
This right, which is linked to the employee status of a parent, extends beyond the phase of employment.
This also applies if you only have a part-time job for two months with a monthly remuneration of EUR 500 in Germany, if the child attended school in Germany during this time.
1.2 – Federal Social Court, judgment of January 27, 2021 (B 14 AS 35/19 R):
Principle Dr.
Manfred Hammel For adults, cases are conceivable in which an apartment is not the center of life in terms of time, but the use of this accommodation is still to cover a current need for accommodation, and therefore only partial accommodation costs are approved in accordance with Section 22 Paragraph 1 Sentence 1 SGB II for roommates entitled to benefits under SGB II.
If the adult daughter of a needy mother and main tenant is accommodated in boarding school and the parental apartment is used temporarily when the mother returns from vocational rehabilitation on weekends and during vacation periods, further shared use of this apartment by both people cannot be ruled out.
The specifics of the individual case are decisive here.
It is sufficient if the adult daughter regularly uses the parents' apartment for residential purposes.
In this case, the “basic need for housing” is also covered at least temporarily as a “roommate” in this apartment, regardless of whether this apartment is actually the center of this adult’s life.
Important points for assessing whether there is shared living space are the duration and frequency of the adult daughter's stay in her mother's apartment, the operating hours of the boarding school that offers temporary stay, as well as the facilities, size and number of residents boarding school room, whether the daughter's furniture was left in the mother's apartment or was taken to the boarding school, and in what way the mother used her daughter's room during her absence.
The aspect of internal balance between the people living in an apartment is particularly important here.
1.3 - No subordination of social assistance to housing benefit II - Full text of the judgment B 8 SO 2/20 R - An article by Attorney Kay Füßlein
When asking people to apply for housing benefit - instead of benefits according to SGB XII - the authorities have so far relied on Section 2 SGB XII. The background, however, is that if housing benefit is received, benefits (exemptions from additional payments, social tickets, GEZ exemption) are no longer available or have to be applied for at great expense. The situation then arose where, despite paying a higher amount of housing benefit, there was less in your pocket at the end of the month.
The question was now whether this was a viable legal requirement to refuse basic security benefits. After all, SGB II, for example, explicitly provides for a regulation as to when to apply for housing benefit and when not - SGB XII does not.
In its judgment of March 23, 2021, the Federal Social Court briefly and succinctly states:
“…the Senate answers the question that has so far been left open by saying that Section 2 Paragraph 1 SGB XII generally does not represent an exclusion norm.”
This means that there is a right to choose between benefits according to SGB XII and housing benefit.
Note:
Due to various housing benefit reforms in recent years, it may be that even if the benefits for receiving housing benefit are no longer available, there will be “more in your pocket” (although with housing benefit, for example, additional operating costs are not covered). It is therefore important to check in advance how high the housing benefit actually is.
Federal Social Court (BSG) judgment of March 23, 2021- B 8 SO 2/20 R
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of April 22, 2021 – L 32 AS 588/16
Absence - employed person - income - provisional approval - final decision
Guidance (editor)
§ 7 Para. 4a SGB II is to be interpreted in a constitutionally compliant manner in accordance with the regulatory purposes (see in particular § 2 Para. 2 SGB II) in such a way that benefits are excluded from employed persons (i.e. not unemployed or job seekers) whose need for help only due to the horizontal income distribution according to Section 9 Paragraph 2 SGB II (BSG, judgment of November 7, 2006, B 7b AS 8/06 R), does not occur.
Guiding principle (Juris)
Section 7 Paragraph 4a SGB II is to be interpreted in a teleologically reductive manner to the effect that benefits are not excluded from employed persons whose need for help is only justified because of the horizontal income distribution according to Section 9 Paragraph 2 SGB II, because there is already an obligation to announce this an absence does not exist.
Source: gesetze.berlin.de
2.2 – LSG Berlin-Brandenburg, judgment of January 13, 2021 – L 14 AS 1391/17
Basic security for the unemployed - inpatient facility - mother-father-child living - additional needs for single parents - inadmissible objection - lack of proof of power of attorney in the objection procedure
Principle
1. A youth welfare facility that offers young mothers/fathers with children under 6 years of age housing options and provides them with comprehensive support in the care and upbringing of the child can be an inpatient facility within the meaning of Section 7 Paragraph 4 SGB II.
2. It remains unclear whether an objection - without the possibility of redress in court proceedings - should be rejected as inadmissible simply because proof of the power of attorney requested by the authority is not submitted in a timely manner.
Source: gerichtsverkauf.brandenburg.de
2.3 – LSG Schleswig-Holstein, decision of. May 6, 2021 – L 6 AS 66/21 B ER, L 6 AS 61/21 B PKH
Guiding principle
on the reason for the order in the case of a laptop that has already been purchased and payment of the purchase price in installments
Source: www.gesetze-rechtsprachung.sh.juris.de
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 – Bremen Social Court, decision of May 20, 2021 (S 26 AS 1257/20):
Principle Dr.
Manfred Hammel A job center can refuse the payment of cash benefits in accordance with Sections 19 ff. SGB II via an account held at a British bank by a person entitled to benefits in accordance with Section 7 Paragraph 1 Sentence 1 SGB II.
After Great Britain leaves the EU, Section 42 Paragraph 3 Sentence 1 SGB II no longer applies here.
The change of account details from a financial institution that is not based in the EU to a financial institution based in the EU represents a significant change in the actual circumstances of a benefit recipient associated with that applicant.
4. Decisions of the state social courts and social courts on employment promotion law (SGB III)
4.1 – LSG Munich, decision of. May 10, 2021 – L 10 AL 61/21 B ER
Title:
Reimbursement of social security contributions while receiving Kug after the application for the opening of insolvency proceedings
Guidelines:
1. The reimbursement of social security contributions in accordance with Section 2 Paragraph 1 KugV is not at the discretion of the BA. The short-time working allowance according to Section 95 SGB III and the associated reimbursement of social security contributions are active employment promotion benefits (Section 3 Paragraph 2 SGB III), which are fundamentally discretionary benefits (Section 3 Paragraph 3 SGB III). However, this explicitly excludes short-time work allowance in the event of loss of work (Section 3 Paragraph 3 No. 5 SGB III) and thus also the reimbursement of social security contributions in accordance with Section 2 Paragraph 1 KugV, which is based on the legislative authorization in Section 109 Paragraph 5 No. 3 SGB III and after the implementation in Section 2 Paragraph 1 KugV is ancillary to the entitlement to short-time work benefits. (Rn. 24) (red. LS Claus-Peter Bienert)
2. According to the will of the legislature, which is also likely to be the basis for the regulation in Section 2 Para. 1 KugV created on the basis of the power to issue ordinances, the reimbursement of social security contributions is intended to exempt the employer from a large part of the individual costs of continuing to employ the workforce. The aim of the reimbursement of social security contributions by the BA is ultimately to preserve the jobs of the individual employees receiving short-time work benefits, but the means to this is to temporarily relieve the employer of the burden resulting from the obligation to continue paying social security contributions and the side effect is that otherwise The liquidity flowing out of the social insurance provider ultimately remains with the employer. (Rn. 27) (red. LS Claus-Peter Bienert)
3. According to Section 333 Para. 3 No. 1 SGB III, the BA "can" with claims for repayment of, among other things, reimbursed social security contributions for recipients of short-time working allowance, which were provisionally provided, against claims, among other things, for short-time working allowance, which have been paid out by the employer, calculate. The “whether” to set off is already a discretionary decision; According to Section 35 Paragraph 1 Sentence 2 SGB The amount of offsetting (the “how” of offsetting) also requires such discretion. (Rn. 28) (red. LS Claus-Peter Bienert)
4. In the procedure for the reimbursement of social security contributions as a supplementary benefit to the short-time working allowance, the employer asserts the rights of the employees by means of procedural and procedural status, with the result that Section 193 SGG is applicable. (Rn. 34) (red. LS Claus-Peter Bienert)
Source: www.gesetze-bayern.de
4.2 – SG Nordhausen, judgment of April 20, 2021 – S 18 AL 615/19
On the application of Section 141 Paragraph 3 SGB III - entitlement to unemployment benefit - personal registration of unemployment - retroactive effect in the event of a lack of willingness to work
Guiding principle (editor)
If the responsible employment agency is not available for service on the first day of the unemployed person's unemployment, a personal report on the next day on which the employment agency is available for service will have an effect back to the day on which the employment agency is was not ready for duty (contrary to SG Berlin, judgment of January 21, 2020 - S 120 AL 207/18).
Guidance (editor)
1. The case of retroactive effect of the unemployment registration if unemployment occurs on a day when the agency is not available for work, if unemployment had already existed before, is not regulated by law (see a. above). However, this gap is contrary to plan.
2. The meaning and purpose of Section 141 Paragraph 3 SGB III does not require limiting the possibility of a retroactive effect of the report to cases of employment that was carried out up to and including the day before the person was not available for duty. Rather, an extension is to be made for cases of a lack of readiness for work on the first day of unemployment, in which previous employment but not unemployment was based on an inability to work. It does not correspond to general life experience that a person who is unable to work is not prevented from registering as unemployed personally and for the next calendar day on the last day of their inability to work due to illness (but according to SG Berlin, judgment of January 21, 2020 - S 120 AL 207 /18).
Source: www.landesrecht.thueringen.de
5. Decisions on asylum law and AsylbLG
5.1 – LSG Munich, judgment by May 18, 2021 – L 8 AY 122/20 – Revision approved
Title:
Benefits, decision, deportation, asylum application, asylum procedure, accommodation, benefit approval, approval, entry, asylum recognition, reimbursement of costs, wages, obligation to leave the country, interpretation, Federal Republic of Germany, constitutional interpretation, meaning and purpose
Guiding principle (Juris)
1. The transitional regulation of Section 15 AsyblLG does not only apply with regard to the extension of the waiting period.
2. The unwritten requirement of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG is to actually “stand up for one another”.
Source: www.gesetze-bayern.de
5.2 – Halle Social Court, decision of February 26, 2021 (S 17 AY 31/20 ER):
Principle Dr.
Manfred Hammel The application of need level 2 in accordance with Section 3 Paragraph 1 No. 2b) or Paragraph 2 No. 2b) AsylbLG for an adult, single person entitled to claim according to Section 1 Paragraph 1 AsylbLG solely because of shared accommodation in a special one Institutions under the Asylum Act must be viewed critically.
A general (percentage) derivation of the needs to secure the necessary subsistence requires a family living and economic community as a starting point for economic legal consequences.
However, when calculating the amounts of money for people entitled to benefits who are accommodated in collective accommodation, the legislature cannot prove the actual need using a process that is transparent in terms of content.
Correspondingly reduced requirement rates are only justifiable if it can be proven that several people entitled to benefits share housekeeping within such accommodation.
The body responsible for implementing the AsylbLG must meet the objective burden of presentation and proof assigned to it.
6. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other legal books
6.1 – Destitute people are allowed to choose social assistance instead of housing benefit, a contribution from attorney Helge Hildebrandt
further: Sozialberatung-kiel.de
6.2 - Note on: BVerwG 1st Senate, judgment of January 26, 2021 - 1 C 42/20
Author: Prof. Dr.
Uwe Dietmar Berlit, VRiBVerwG Extension of the Dublin III transfer deadline due to the asylum seeker's absconding
Guiding principles
1. If the Federal Office for Migration and Refugees knows the whereabouts of an asylum seeker who is in the so-called open church asylum, it can no longer (or no longer) consider him to be a fugitive within the meaning of Art. 29 Para. 2 Sentence 2 Alt. 2 Dublin III-VO and Therefore, the deadline for transfer to the responsible Member State should not be extended to 18 months.
2. This also applies if the applicant was previously in a covert church asylum within the six-month transfer period (Art. 29 Para. 1 Dublin III Regulation), but the Federal Office became aware of his or her whereabouts before the extension decision was issued.
Source: www.juris.de
Editor's note:
Due to maintenance work on the server, the www.socialgerichtsabilities.de currently not accessible.
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles legal ruling ticker tacheles-socialhilfe.de
