1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – LSG Bayern, decision of 28.07.2021 – L 16 AS 241/21 NZB
Title:
On the value of the subject matter of the appeal in cases of cancellation, reimbursement and set-off
Guiding principles:
1. For the purpose of determining the value of the appeal pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), the values of several claims asserted in one action are not aggregated if the claims are economically identical, i.e., directed at the same interest or the same economic objective. This is the case with rescission, recovery, and set-off relating to the same claim.
2. Section 144, paragraph 2, number 3 of the Social Court Act (SGG) requires that a procedural defect subject to review by the appellate court be asserted and exist. The facts presented must, at the very least, clearly indicate which defect is being alleged or in which action of the Social Court a procedural defect is perceived.
Source: www.gesetze-bayern.de
1.2 – LSG Bayern, decision of 29.07.2021 – L 5 SF 174/21 AB
Title:
Recusal of a Judge
Principle:
Since the legal amendment of January 1, 2020, motions for recusal are no longer considered immediate and are therefore inadmissible if they are not submitted within a consideration period of a few days.
Source: www.gesetze-bayern.de
1.3 – LSG Berlin-Brandenburg, judgment of 08/06/2021 – L 25 AS 590/20 WA
Basic income support for job seekers – appeal – early retirement pension – application – pension procedure – entitlement to unemployment benefits – qualifying period – employment subject to social security contributions – Federal Voluntary Service
Principle
1. Section 2 of the Unfairness Ordinance covers the situation where a person entitled to benefits receives unemployment benefit I under Book III of the German Social Code (SGB III), to which they have a legally protected claim for a specific duration and amount, and additionally receives supplementary benefits to secure their livelihood under Book II of the German Social Code (SGB II). Unfairness therefore only arises when unemployment benefit I is received, not when an entitlement to it is acquired.
2. Employment subject to social security contributions within the meaning of Section 4 of the Unfairness Ordinance is not performed during the Federal Volunteer Service. Although Federal Volunteer Service is subject to social security contributions, it is not considered employment within the meaning of the Unfairness Ordinance.
Source: gesetze.berlin.de
1.4 – LSG Berlin-Brandenburg, decision of 31 May 2021 (L 5 AS 457/21 B ER, L 5 AS 459/21 B ER PKH):
Dr. Manfred Hammel's guiding principle:
Periods of imprisonment served within the five-year period stipulated in Section 4a Paragraph 1 Sentence 1 of the Freedom of Movement Act/EU interrupt the legal residence of an EU citizen in Germany, meaning that this five-year period begins anew upon release from prison. The imposition of a prison sentence without probation indicates a lack of willingness on the part of a foreign offender to integrate into the society of their host country.
The applicability of the exception provision arising from Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II) requires proof of continuous registrations in compliance with registration law throughout the entire five-year period according to Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II).
A deregistration carried out during this phase does not document a consolidation of residence status in the federal territory and therefore does not demonstrate a firm connection with German society.
Even for homeless individuals, according to the wording of Section 7 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), police registration is mandatory. Involuntarily homeless individuals have the option of being admitted to emergency accommodation and registering there, in accordance with the police and public order laws of their respective federal state. Voluntarily homeless individuals can contact advice centers for homeless people.
1.5 – Lower Saxony-Bremen State Social Court, 13th Senate, Decision of 09.09.2021 – L 13 AS 345/21 B ER
Social law administrative procedure – objection – compliance with the objection period in the case of incorrect legal remedy information – lack of information on the possibility of electronic submission of the objection
A notice of appeal which, contrary to the wording of Section 84 Paragraph 1 Sentence 1 of the Social Court Act (SGG) in the version valid since January 1, 2018, does not refer to the possibility of submitting the objection electronically, is incorrect within the meaning of Section 66 Paragraph 2 Sentence 1 of the Social Court Act (SGG).
Source: www.rechtsprachung.niedersachsen.de
Note:
This corresponds – as far as can be seen – to the prevailing opinion in current social court case law (Schleswig-Holstein Higher Social Court [LSG], decisions of December 20, 2018 – L 6 AS 202/18 B ER – and of May 6, 2021 – L 6 AS 64/21 B ER –; Hildesheim Social Court, judgment of September 3, 2020 – S 12 AS 13/19; Berlin Social Court – 51st Chamber –, decision of January 22, 2020 – S 51 KR 2926/19 ER; Berlin Social Court – 179th Chamber –, judgment of December 8, 2020 – S 179 AS 10734/19; Darmstadt Social Court, decision of May 23, 2018 – S 19 AS 309/18 ER; contra: Berlin Social Court – 37th Chamber –, Court order of August 13, 2020 – S 37 AS 4462/19; Social Court Lübeck, judgment of October 16, 2020 – S 16 AS 116/19)
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Dresden, Judgment of 03.09.2021 – S 34 AS 282/19
Guidance (Attorney Johannes Christian Heemann, 01099 Dresden):
In the hearing procedure pursuant to Section 24 of the German Social Code, Book X (SGB X), the person concerned has no obligation to cooperate within the meaning of Sections 60 et seq. of the German Social Code, Book I (SGB I).
Therefore, the legal fees for a successful objection procedure against a reduction notice pursuant to Section 32 SGB II (failure to report) are also reimbursable if the person concerned does not invoke the non-receipt of the reporting requirement in the hearing procedure, but only in the objection procedure.
3. Decisions of the social courts on employment promotion law (SGB III)
3.1 – Social Court Nuremberg, Judgment of 08.07.2021 – S 22 AL 167/21
Title:
Waiting period due to conduct-related dismissal by employer
Guiding principles:
1. A waiting period following dismissal due to time-tracking fraud is unlawful if the Federal Employment Agency failed to investigate the facts in breach of its duty. (Paragraph 19) (Editorial principle)
2. A brief phone call to the former employer regarding facts disputed by the insured is insufficient. (Paragraphs 21-23) (Editorial note)
Source: www.gesetze-bayern.de
4. Decisions on asylum law and asylum seekers' benefits
4.1 – LSG Bayern, decision of 26.08.2021 – L 19 AY 70/21 B ER
Title:
Restriction of benefits pursuant to Section 1a Paragraph 4 Sentence 2 No. 1 AsylbLG when international protection is granted by Greece
Guiding principles:
1. In view of the constitutional doubts, the unwritten element of the provision in Section 1a Paragraph 4 Sentence 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) must be required, namely that the return of the person concerned to the other Member State of the European Union that grants international protection is possible and reasonable for factual and legal reasons.
2. Here: Restriction of benefits pursuant to Section 1a Paragraph 4 Sentence 2 No. 1 AsylbLG upon granting of international protection by Greece.
Source: www.gesetze-bayern.de
5. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
5.1 – ASR 4/2021 – Decision review by Ronald Richter
A judge who declares it disreputable that someone hires a lawyer from afar and claims that the lawyer is only interested in his own fees is unprofessional and biased
SG Gotha 13.7.21, S 16 SF 1267/21 AB
ASR 4/2021
The state's lack of "rational sovereignty" over those entitled to fundamental rights means there is no obligation to apply for integration assistance
Refusal to offer help must be respected; this also follows from the UN Convention on the Rights of the Child
LSG Nds-Bremen v. 3.5.21, L 8 SO 47/21 B ER
Source: Attorney Volker Gerloff, Twitter
5.2 – Job centers will temporarily cover all rents until the end of 2021, a contribution by attorney Matthias Göbe
More information: www.anwalt.de
5.3 – New edition of the working aid “Framework conditions for refugees’ access to the labor market” published
The Asylum and Migration Information Network and the German Red Cross (DRK) have published an updated edition of their advisory guide, "Framework Conditions for Refugees' Access to the Labor Market." Author Dr. Barbara Weiser has completely revised the brochure in light of the numerous recent legislative changes. The brochure explains the conditions under which asylum seekers, refugees with protected status, and those with tolerated stay status are permitted to work, and what support options are available to them.
The guide can be found, among other places, on the website of the Information Network Asylum and Migration here, as well as on the website of our labor market project AZF3 here.
www.asyl.net and azf3.de
Author of the case law ticker: Tacheles editor Detlef Brock.
Source: Tacheles case law ticker
