1. Decisions of the Federal Social Court on asylum law and the Asylum Seekers' Benefits Act (AsylbLG) as well as on employment promotion law (SGB III)
1.1 – BSG, judgment of June 24, 2021 – B 7 AY 1/20 R
Asylum seeker benefits law – analogous benefits – blind person's allowance
Guiding principle (Editor Tacheles e. V.)
1. For those entitled to benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsybLG), a claim to blind person's assistance under Section 72 of the German Social Code, Book XII (SGB XII) is not excluded from the outset.
2. If there is a need for assistance, the benefit provider must make a discretionary decision on the granting of blindness assistance based on the plaintiff's blindness, in analogous application of Section 72 of the German Social Code, Book XII (SGB XII).
3. Neither is the possibility of such a claim for those entitled to analogous benefits under the Asylum Seekers' Benefits Act (AsylbLG) excluded by Section 9 Paragraph 1 AsylbLG and Section 23 Paragraph 2 SGB XII, nor does the fact that the plaintiff receives benefits under the AsylbLG lead to considerations that limit the defendant's discretion from the outset in the sense that only a negative decision would be lawful (so-called reduction of discretion to zero).
Source:www.bsg.bund.de
1.2 – BSG, judgment of June 24, 2021 – B 7 AY 4/20 R
Asylum seeker benefits law – analogous benefits – church asylum – length of stay
Guiding principle (Editor Tacheles e. V.)
1. Staying in church asylum is not an abuse of rights.
2. The Senate adheres to its established case law, according to which conduct is only abusive within the meaning of the norm if, taking into account the individual case, the particular situation of a foreigner in the Federal Republic of Germany and the special characteristics of the Asylum Seekers' Benefits Act (AsylbLG), it is inexcusable in the sense of being socially unacceptable.
Source:www.bsg.bund.de
Note:
Open church asylum does not justify lower asylum benefits.
So-called open church asylum for refugees must not lead to reduced asylum benefits. It constitutes "contradictory behavior" on the part of the state if it accuses an asylum seeker, who is obligated to leave the country, of abusing the law to prolong their stay by seeking church asylum, while the authorities tolerate their presence in a community.
More information:www.evangelisch.de
and church asylum is not an abuse of rights within the meaning of Section 2 of the Asylum Seekers' Benefits Act, an article by lawyer Peter Holzschuher
More information: www.anwalt.de/
1.3 – BSG, Judgment of March 4, 2021 (B 11 AL 7/19 R):
Guiding principle Dr. Manfred Hammel:
Periods of insurance relationship within the meaning of §§ 24 ff. SGB III can also exist during the receipt of transitional allowance due to a vocational rehabilitation measure.
Section 143 paragraph 3 sentence 1 of the German Social Code, Book III (SGB III) is not a special regulation that overrides other provisions and also precludes the application of regulations under which compulsory insurance may exist.
Dependent employment within the meaning of Section 25 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III) requires personal dependence on an employer, integration into an externally determined, company-wide structure, and subordination to the employer's right to issue instructions regarding the time, duration, location, and manner of work performance. This is not the case with employment for training purposes in a vocational training center.
Here, the training and learning location cannot be assigned to any employer within the framework of an employment relationship.
In contrast to Section 25 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), Section 25 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) does not link the compulsory insurance under Section 24 of the German Social Code, Book III (SGB III) with "employment" for vocational training, but rather Section 25 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book III (SGB III) declares the training completed in an external institution within the framework of a vocational training contract according to the Vocational Training Act (BBiG) to be sufficient.
However, the provisions of the Vocational Training Act (BBiG) concerning vocational training relationships, as set out in Sections 4 et seq. of the BBiG, are not applicable to retraining relationships.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Berlin-Brandenburg, judgment of June 7, 2021 – L 25 AS 1335/17
Basic income support for job seekers – exclusion from benefits – BAföG recipients – revocation decision – hearing – lack of a hearing – rectification – rectification – gross negligence – suspension – appropriate – one-year period
Principle
1. Making up for a missing hearing during court proceedings requires that the authority, in a more or less formal administrative procedure, give the affected party the opportunity to comment on the facts relevant to the decision and subsequently indicate whether, after re-examining these facts, it maintains its previously issued administrative act. This formalized procedure regularly requires a separate letter requesting a hearing, a reasonable period for submitting comments, the authority's acknowledgment of the submissions, and its final statement on the outcome of the review.
2. A stay of proceedings to allow the defendant to hold a hearing is not expedient if no further administrative or judicial proceedings in the same matter are imminent, which would be rendered unnecessary by the stay to remedy the procedural defect. This is the case if the one-year time limit of Section 45 Paragraph 4 Sentence 2 of the German Social Code, Book X (SGB X) cannot be observed. In such a case, a stay to conduct a formal hearing cannot be considered expedient in terms of procedural efficiency, because this would ultimately circumvent the withdrawal deadline of Section 45 Paragraph 4 Sentence 2 of the SGB X.
Source: gesetze.berlin.de
2.2 – LSG Berlin-Brandenburg, judgment of June 3, 2021 – L 25 AS 1720/18
Basic income support for job seekers – need for assistance – income – assets – inflow – available funds – inheritance – real estate – co-heir – universal succession – estate settlement – realization of an inheritance share – realization efforts – job center's duty to inform and advise – confusion
Principle
1. In the case of an inheritance, the increase in value only reduces the need for assistance once the income is actually available to the person in need to cover their needs. In the case of universal succession through inheritance, this is generally only the case once the distribution of the estate's assets has taken place. The person seeking assistance must not be referred to funds that will only be available to them in the future to meet their current needs.
2. If the co-heir fails to make efforts to realize the value of the inheritance, the case law of the Federal Social Court (judgment of May 24, 2017 – B 14 AS 16/16 R – juris) on Section 9 Paragraph 4, Section 24 Paragraph 5 of the German Social Code, Book II (SGB II) is not readily applicable to the question of whether income is available as readily available funds.
Source:gesetze.berlin.de
2.3 – LSG Berlin-Brandenburg, decision of 31.05.2021 – L 5 AS 457/21 B ER, L 5 AS 459/21 B ER PKH
Permanent right of residence – exception to the rule – continuous reporting
Guiding principle:
The exception to the general rule in Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II) requires not only a one-time registration with the registration authority, but continuous registration in the federal territory for a period of at least five years.
Source:gesetze.berlin.de
Note:
It is disputed in legal literature and case law whether Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II) requires continuous (and, moreover, registration-compliant) registrations throughout the entire five-year period (see Schleswig-Holstein Higher Social Court, decision of May 4, 2018, L 6 AS 59/18 B ER; Hesse Higher Social Court, decision of October 16, 2019, L 7 AS 343/19 B ER; Berlin-Brandenburg Higher Social Court, decision of May 4, 2020, L 31 AS 602/20 B ER; Groth, in: BeckOK Sozialrecht, 60th edition, as of March 1, 2021, Section 23 of the German Social Code, Book XII (SGB XII), marginal note 18e; possibly also: Mushoff, in: BeckOK Sozialrecht, 60th edition, as of March 1, 2021, Section 7 SGB II). para. 43) or not (see LSG Hamburg, decision of June 20, 2019, L 4 AS 34/19 B ER; LSG Schleswig-Holstein, decision of December 9, 2019, L 6 AS 152/19 B ER; LSG Lower Saxony-Bremen, decision of July 3, 2020, L 8 SO 73/20 B ER; LSG North Rhine-Westphalia, decision of April 23, 2018, L 7 AS 2162/17 B ER; LSG Berlin-Brandenburg, judgment of May 11, 2020, L 18 AS 1812/19; Geiger, in: Münder/Geiger, SGB II, 7th ed. 2021, § 7 para. 42).
2.4 – LSG Berlin-Brandenburg, judgment of March 17, 2021 – L 18 AS 1472/18
Housing benefit back payment – Income – Basic ruling in the dispute over amounts
Guiding principle (editor Tacheles e. V.):
The housing benefit back payment must be counted as income.
Source: gerichtsverkauf.brandenburg.de
2.5 – LSG Munich, Judgment of 06.05.2021 – L 16 AS 652/20
Title:
Withdrawal of benefits under the German Social Code, Book II (SGB II), defective notification of legal consequences, defective exercise of discretion
Guiding principles:
1. Before benefits are withdrawn pursuant to Section 66 of the German Social Code, Book I (SGB I), the recipient must be given written notification of the legal consequences, which must be specific, correct, and complete. The intended decision must be communicated.
2. A discretionary decision to completely withdraw standard benefits under the German Social Code, Book II (SGB II) to clarify employability, in cases of undisputed need for assistance, requires special justification.
3. A discretionary decision consisting of formulaic phrases about the legality of administration, economy and equal treatment suffers from a deficit in weighing the relevant factors.
Source: www.gesetze-bayern.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Mainz, Judgment of November 26, 2020 (S 190 AS 654/18):
Guiding principle by Dr. Manfred Hammel:
On the assumption of the costs for a necessary repair of a motor vehicle belonging to the head of household, as well as the costs of the main inspection in the amount of approximately EUR 600,- pursuant to Section 16f Paragraph 1 Sentence 1 SGB II in conjunction with Section 3 Paragraph 1 SGB II, if the wife can no longer perform her work as a cleaner for two different employers without a usable car.
Here, the job center must properly consider the aspect of dependence on this vehicle for further income generation and incorporate it into its discretionary considerations in the appropriate manner.
In this context, the benefits payable under Sections 16 et seq. of the German Social Code, Book II (SGB II) must be compared to the costs saved to secure the necessary subsistence due to the continued employment of this member of the household.
Note:
Who pays for the car repairs?
Even those who work can be dependent on Hartz IV benefits. A new car is out of reach with these benefits. But repair costs are common for older cars. The Mainz Social Court has now ruled on who is responsible for paying these costs in the case of a cleaning worker.
Further information:www.dgbrechtsschutz.de
3.2 – Social Court Magdeburg, judgment of June 4, 2021 (S 27 AS 2124/15):
Guiding principle Dr. Manfred Hammel:
Initial furnishing within the meaning of Section 24 Paragraph 3 Sentence 1 No. 1 SGB II also exists in the case of the establishment of a new household after separation from the previous partner, if it is proven that there is a need for furnishing a completely new apartment.
In such circumstances, equating a replacement purchase with the initial furnishing of an apartment is justifiable.
The focus here is not on the living conditions that existed before the establishment of the now-defunct household.
3.3 – Social Court Dresden, Judgment of 08.06.2021 – S 10 AS 425/20
Guidance (Attorney Johannes Christian Heemann, 01099 Dresden):
1. If the authority intends to reject the objection as inadmissible if the power of attorney is not submitted, it must indicate this when requesting the power of attorney (cf. Higher Social Court of North Rhine-Westphalia, decision of 16 October 2013 – L 2 AS 1342/13 B, para. 13, juris; judgment of 20 November 2013 – L 12 AS 343/13, para. 22, juris).
2. If the required notification is omitted and the objection is nevertheless rejected as inadmissible due to lack of authorization, the objection decision, which is unlawful in this respect, can be challenged separately. This is because the objection procedure, as a preliminary judicial procedure, serves a filtering function to relieve the burden on the social courts, so that if the authority fails to investigate and examine the facts, a referral back to the case for a substantive decision is necessary.
3.4 – Social Court Dresden, Judgment of 08.06.2021 – S 10 AS 12/21
Guidance (Attorney Johannes Christian Heemann, 01099 Dresden):
The preliminary proceedings/objection proceedings are concluded with the issuance of the decision on the objection. After the issuance of the decision on the objection, the objection authority may no longer take action because, with the filing of the lawsuit, procedural control has passed to the court. A second decision on the objection is unlawful and must be overturned (see Lower Saxony-Bremen State Social Court, judgment of January 10, 2019 – L 15 AS 262/16).
4. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
4.1 – LSG Munich, Judgment of 21.05.2021 – L 8 SO 213/20
Title:
Health insurance, benefits, integration assistance, reimbursement of costs, living expenses, notification, disability, social assistance, income, pension, basic income support, doctor, reduced earning capacity, rehabilitation, subsistence allowance, statutory health insurance, medical rehabilitation
Guiding principles:
1. The provision of Section 31 Paragraph 1 No. 3 of the German Social Code, Book XII (SGB XII) does not preclude an entitlement to integration assistance under Sections 53 et seq. of the German Social Code, Book XII (SGB XII) in its former version.
2. Insufficient private health insurance coverage cannot be used to oppose the obligation of the integration assistance provider to provide benefits under Section 14 of the German Social Code, Book IX (old version).
Source: www.gesetze-bayern.de
4.2 – SG Koblenz, judgment of January 21, 2021 – S 1 SUN 44/20
Regarding the referral of a social welfare recipient in need of care to the delivery of lunch by a meal delivery service.
Principle
1. If the daily preparation of a hot meal by an outpatient care service is significantly more expensive than delivery by a meal delivery service, the social welfare provider can refer the recipient of assistance for care to the use of the meal delivery service.
2. Regarding the existence of medical reasons for the individual preparation of a hot meal.
Source: www.landesrecht.rlp.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – LSG Nds.-Bremen v. 1/26/21 – L 8 AY 21/19
Referral to the Federal Constitutional Court regarding the unconstitutionality of forced partnership through basic needs 2b (§§ 3, 3a AsylbLG).
Source: Attorney Volker Gerloff
5.2 – Social Court Kassel, decision of May 5, 2021 (S 11 AY 7/21 ER):
Guiding principle Dr. Manfred Hammel:
An Iranian national whose deportation is legally pending, but against whom no measures terminating his residence can be carried out because this person has not cooperated in a reasonable manner in obtaining the necessary passport, falls in principle into the group of persons affected by a restriction of entitlement pursuant to Section 1 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG).
However, the legal consequence of Section 1a Paragraph 3 Sentence 1 AsylbLG in conjunction with Section 1 Paragraph 1 Sentence 1 No. 4 or 5 AsylbLG always requires a constitutionally compliant interpretation.
In light of years of benefit cuts and the applicant's current life situation, there are considerable doubts about the constitutionality of such a drastic restriction of entitlements.
In this case, the applicant's dignified minimum standard of living is not guaranteed, and therefore the responsible authority should be obliged to grant provisional, full benefits under the Asylum Seekers' Benefits Act (AsylbLG).
Note (Editor Tacheles e. V.):
cf. Hessian State Social Court, decision of 26 February 2020 – L 4 AY 14/19 B ER; Saxon State Social Court, decision of 11 January 2021, L 8 AY 10/20 B ER, decision of 22 February 2021, L 8 AY 9/20 B ER and decision of 3 March 2021, L 8 AY 8/20 B ER – the regulation in § 1 para. 1 sentence 2 AsylbLG contradicts the constitutional requirements mentioned in the judgment of the Federal Constitutional Court of 5 November 2019 (1 BvL 7/16).
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Rates will be increased by up to ten euros
Berlin Senate pays Hartz IV recipients more rent
Hartz IV recipients will be allowed to live in more expensive accommodation: Gross rent rates will increase in July!
The rent for households receiving social assistance is covered by the welfare office – but it must be reasonable. Since a new Berlin rent index has been published, the Senate Department for Social Affairs is adjusting the guideline values. The decisive factor is the average rent for simple to average housing (6.25 to 6.84 euros/m²). Operating costs (excluding utilities) also play a role – these are 1.68 euros/m².
The new price ranges extend from 426 euros (single apartment) to 857.82 euros (5 people) – almost ten euros more (see table below)
Source: www.bz-berlin.de
6.2 – Reading and using the mobile phone data of asylum seekers without exhausting less intrusive means is inadmissible
The Federal Office for Migration and Refugees (BAMF) is not authorized to compel asylum seekers to disclose their mobile phone access data, analyze their mobile phones, and base its decision on their asylum application on this data without exhausting less intrusive means. This was the ruling of the Berlin Administrative Court in a legal proceeding.
Further information: www.juris.de
6.3 – Expulsion order against Union citizens
A Union citizen against whom an expulsion order has been issued may only enjoy a new right of residence in the territory of the host Member State after he or she has actually and effectively ended his or her stay in that territory.
Such an expulsion order is not fully enforced simply because that Union citizen has physically left this territory within the time limit set in that order for his voluntary departure.
Further information:www.juris.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
