1. Decisions of the Federal Social Court on basic security for job seekers according to (SGB II)
1.1 – BSG judgment v. December 14, 2021 – B 14 AS 73/20 R
Basic security for job seekers - entitlement to social benefits - temporary community of need - child
Dealing with a separated father can justify a higher Hartz IV
This is the guiding principle of Dr.
Manfred Hammel The application of Section 7 Paragraph 3 No. 4 SGB II does not require children under the age of 25 to live permanently in one household. However, the children must belong to a household of the people specified in Section 7 Paragraph 3 Numbers 1 to 3 SGB II.
The same cannot be said with regard to the “main needs community”, which is formed by needy children together with their mother during the times in which the children are staying with their father due to the existing agreement on exercising access rights.
If, for reasons of contact, a child moves with a certain regularity from the community of need of the parent in custody to the household of the other parent who is also entitled to access, then the job center must determine whether it belongs to one of the two communities of need based on the length of time of the stay (§ 41 para 1 sentence 1 SGB II).
If a change in household affiliation takes place on one day, the decision must be made based on the predominant assignment in terms of time. Due to the possible total length of stay of 24 hours, it is generally of crucial importance which community of need a child stays in for longer than twelve hours based on the respective calendar day.
Here too, the principle applies that in this life situation of a child living in a “temporary needs community”, this young person must be able to cover his or her regular needs.
A child's regular absence from the household of the primary needs community while at the same time belonging to the household of the parent who is also entitled to access cannot be equated with other phases that were purely temporary from the outset, such as visits to relatives and hospital stays.
Which specific claims children can assert here in accordance with Section 19 Paragraph 1 Sentence 3 SGB II for standard needs (Section 20 SGB II) always depends on the days on which these children spend most of their time (depending on travel times, usually twelve hours). ) stay with her mother. Only for these times are the children's standard needs to be divided into days because of the alternative membership in two needs communities.
The granting of additional needs according to Section 21 Paragraph 6 SGB II can be considered if, when a child belongs to two communities of need, it can be proven that one of the two households has ongoing higher needs that are not covered by priority maintenance or other benefits according to SGB II will arise due to the changing locations of this child.
With regard to the needs for accommodation and heating (§ 22 SGB II), the job center must take into account the full head of the monthly expenses for the apartment that a child lives with his mother.
If such circumstances exist, the accommodation needs of the minor child will not be met in the home of the father, who is also entitled to access, even if a (temporary) community of needs is formed with this parent. However, this child's center of life is not in this home, but in the home of the parent in charge.
Only the monthly allocation of the accommodation-related needs for the child as a member of the care parent's community of needs ensures that needs are completely met.
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 – LSG Hamburg, judgment of February 24, 2022 – L 4 AS 266/21
Sanction - reductions in unemployment benefit II - exercise of discretion - information on legal consequences before the BVerfG's decision on the partial unconstitutionality of sanction regulations - assignment to work opportunity was legal
Instructions on the legal consequences can only refer to the legal situation existing at the time of the instruction (Guideline Editor of Tacheles e. V.).
Source: www.landesrecht-hamburg.de
Legal tip editor v.
Tacheles e. V.: see Hessian LSG, judgment of November 12th, 2021 - L 6 AS 147/21 and LSG Saxony-Anhalt, decision of January 27th, 2021 - L 2 AS 24/21 B ER and most recently LSG Berlin-Brandenburg, judgment .v. 02/17/2022 – L 20 AS 229/20
2.2 – Opinion: SG Speyer, court decision v. April 22, 2021 – S 15 AS 117/19
Reduction in unemployment benefit II - Sanctions occurred before November 5, 2019 - Requirements for prior information on the legal consequences - Retroactive effect of the BVerfG's case law - Obligations of basic security providers to provide information and information - Cancellation of illegal sanction notices that are not final - Constitutional interpretation
Principle
1. A breach of duty according to Section 31 SGB II only occurs if the employable person entitled to benefits has received prior written information 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 sanction under certain circumstances. (Rn.30)
2. This also includes the modifications that the BVerfG ordered in its judgment of November 5, 2019 (1 BvL 7/16) with the force of law (Section 31 Paragraph 2 BVerfGG). In the absence of corresponding restrictions in the tenor of the judgment, these apply retroactively from the time the regulations declared incompatible with the constitution come into force (connection to SG Hamburg from September 24th, 2020 - S 58 AS 369/17 = info also 2021, 86 = juris RdNr 37ff) . (Rn.31)
3. The retroactive validity of the legal consequences of a breach of duty as defined by the BVerfG in accordance with Section 31 Paragraph 1 SGB II means that those affected should have been made aware of these legal consequences or should have been aware of them so that a reduction in the payment claim could have occurred. The fact that it was objectively impossible for the authorities to provide appropriate clarification of sanctions before the BVerfG's judgment was announced does not change this. (Rn.37) (Rn.42)
4. It follows that all reduction notices based on Sections 31a Paragraph 1 Sentence 1, 2 and 3, 31b Paragraph 1 Sentence 3 SGB II in conjunction with Section 31 Paragraph 1 SGB II, which are based on facts before November 5th, 2019, unlawful and - unless legally binding (see Section 40 Paragraph 3 Sentence 1 No. 1 SGB II) - must be repealed. (Rn.43)
Note:
a. SG Berlin also believes, court decision dated January 27, 2021 - S 114 AS 3501/17
2.3 – LSG Hamburg, judgment of January 27, 2022 – L 4 AS 99/21 – Revision approved
Are documents submitted in the legal proceedings to be taken into account in final decisions in accordance with Section 41a Paragraph 3 SGB II to prove relevant facts if a request for submission had already been made in the administrative procedure with a deadline set?
The provision of Section 41a Paragraph 3 Sentence 4 SGB II has no material preclusive effect (leading principle editor of Tacheles e. V.)
Source: www.landesrecht-hamburg.de
Legal tip editor of Tacheles e.
V.: so already judgments of the Senate of June 22, 2021 - L 4 AS 215/20 -, appeal pending under B 4 AS 58/21 R, as well as of August 5, 2021 - L 4 AS 189/20 -, appeal pending under B 4 AS 64/21 R; also SG Leipzig, judgment of May 29, 2018 - S 7 AS 2665/17; Hengelhaupt, in: Hauck/Noftz, SGB II, § 41a SGB II Rn. 376; Conradis, in: LPK-SGB II, § 41a SGB II Rn. 23; Kemper, in: Eicher/Luik, SGB II, § 41a SGB II Rn. 49 ff; aA SG Osnabrück, judgment of April 16, 2019 - S 16 AS 245/18; SG Dortmund, judgment of December 8, 2017 – S 58 AS 2170/17; Kallert, in: Gagel, SGB II/SGB III, § 41a SGB II Rn. 85 ff, as of March 2017).
2.4 – LSG Berlin-Brandenburg, decision of. 02/18/2022 – L 4 AS 1285/21 B PKH
Subsidiarity of the declaratory judgment action compared to the priority performance or design action - social court declaratory action - labor court performance action
Guidance sentence
1. The subsidiarity of the declaratory judgment action is not expressly regulated in the SGG. But it also applies to social court proceedings (BSG judgment of May 8, 2007, B 2 U 3/06 R). The principle of subsidiarity also applies if the primary performance or design action could not be brought through social law (BVerwG decision of March 19, 2014, 6 C 8/13). (Rn.7)
2. In the lawsuit filed with the social court, the plaintiff requests a declaration that his claims for wages, vacation compensation and severance pay against his former employer have not been transferred to the basic security provider in accordance with Section 115 SGB 10 and payments that the latter has made to the basic security provider If it is to be provided, these questions must be clarified in the context of proceedings that are already pending before a labor court. (Rn.8)
3. There is therefore no interest in declaratory judgment brought by the plaintiff to the social court and, as a result, no need for legal protection. (Rn.9)
Source: gesetze.berlin.de
2.5 – LSG Berlin-Brandenburg, decision of. 02/17/2022 – L 1 AS 108/22 B ER
Relatives in direct descending line – Romanian citizens
Orientation sentence editor of Tacheles e.
V. 1. Provisional entitlement to ALG II, because relatives in a straight descending line are not only children, but also grandchildren and great-grandchildren.
2. In the aforementioned definition, the FreizügG/EU, unlike Section 4 Sentence 2 FreizügG/EU, does not use the narrower term of the child, but rather the term of the relative, in accordance with Section 1589 Paragraph 1 Sentence 1 of the Civil Code, according to which all persons, one of whom is descended from the other, are related in a direct line. Only the degree of relationship is determined by the number of births that convey it, not the direct relationship itself.
Source: gesetze.berlin.de
2.6 – Saxon LSG, judgment of April 7, 2022 – L 7 AS 833/19
Guiding principles
A student is not excluded from benefits to secure a living under SGB II - even outside of a semester of leave - if he belongs to the university in organizational terms due to his enrollment, but does not actually pursue his studies
Comment
Basic security for job seekers - withdrawal and reimbursement - attendance at a training facility - mere organizational affiliation with the university - without actually pursuing your studies - no exclusion of benefits for trainees - even outside of a vacation semester
Source: www.socialgerichtsabilities.de
2.7 - LSG NSB, decision of April 1, 2022 - L 11 AS 18/22 B ER
Basic security for job seekers, no entitlement to accommodation and heating requirements, invalidity of the rental agreement, Lower Saxony Housing Protection Act of March 16, 2021 (Nds. GVBl. 2021, 128), ban on overcrowding, prohibition law, interim legal protection
Guiding principle
1. There is no entitlement to accommodation and heating requirements according to Section 22 Paragraph 1 SGB II if the rental agreement for the accommodation is void due to a violation of a prohibitory law according to Section 134 BGB and this is known or should be known to the person seeking help (cf BSG, judgment of September 22, 2009 - B 4 AS 8/09 R -).
2. Section 6 Paragraph 1 of the Lower Saxony Housing Protection Act - NWoSchG - (prohibition of overcrowding in living space and accommodation for employees) is a protection law within the meaning of Section 134 of the German Civil Code (BGB).
Source: www.rechtsprachung.niedersachsen.de
3. Decisions of the state social courts on employment promotion law (SGB III)
3.1 – Bay LSG, decision v. April 25, 2022 – L 2 AL 62/22 B
Guiding principles
1. The order to appear in person in social court proceedings in accordance with Section 111 SGG can be made not only to clarify the facts of the case, but also in the interest of an effective negotiation or expedient settlement (including settlement discussions, explanation of the failure of an appeal).
2. The imposition of a fine is unlawful if the party summoned to appear in person has sufficiently excused his absence.
3. Regardless of the legality of this rejection, the previous rejection of an application by the person involved in accordance with Section 110a SGG to participate via video conference does not constitute a sufficient excuse that precludes the imposition of a fine.
Source: www.socialgerichtsabilities.de
4. Decisions of the state social courts on social assistance (SGB XII)
4.1 - LSG Niedersachsen-Bremen, decision of October 20, 2021 (L 8 SO 158/21 B ER):
Principle Dr.
Manfred Hammel A continuously maintained registration under resident law is not a prerequisite for the affirmation of a five-year permanent residence in accordance with Section 7 Paragraph 1 Sentence 4 SGB II, but a five-year habitual residence (gA) within the meaning of Section 7 Paragraph 1 Sentence 1 No. is sufficient here. 4 SGB II in conjunction with Section 30 Paragraph 3 Sentence 2 SGB II after initial registration with the regulatory authorities in Germany.
When assessing the period during which a GI existed, the legality of this stay should not be taken into account.
A Union citizen may only be deemed to be required to leave the country if the regulatory authority has determined that this person can no longer assert a right to entry and residence in the federal territory (Section 7 Paragraph 1 Sentence 1 FreizügG/EU). Until such an order is issued, there is a right to stay in the federal territory based on the general presumption of freedom of movement.
The exception according to Section 7 Paragraph 1 Sentence 4, 1st Half Sentence SGB II from the benefit exclusions according to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II can apply if the loss of the right to freedom of movement in accordance with Section 2 Paragraph 1 FreizügG /EU was established, but the person concerned objected to this with suspensive effect.
Note:
also LSG BB, judgment of May 11, 2020 - L 18 AS 1812/19, cf. current LSG Berlin-Brandenburg, decision of. 02/07/2022 – L 18 AS 12/22 B ER
4.2 – LSG Hessen, judgment of March 16, 2022 – L 4 SUN 119/21
Guidelines
1. § 3 sentence 5 SodEG, through the security mandate of § 2 SodEG, gives obligated service providers a scope of discretion with regard to setting a lower assessment rate for the subsidy than 75 percent.
2. If subsidies are approved under the SodEG, the claim to payment arises from the legal relationship between the social service provider and the social service provider i. S.v. § 2 Sentence 2 SodEG determines the reason and amount for the month for which the subsidy is applied for, in particular payments to the social service provider have already been made (actual inflow of priority funds within the meaning of § 4 Sentence 1 No. 1 SodEG), the subsidy and performance remuneration must be offset and the discretion of the social service provider responsible for the guarantee is reduced to zero.
Source: www.socialgerichtsabilities.de
4.3 – SG Karlsruhe, judgment of March 29, 2022 – S 2 SO 2888/20
Guiding principles
1.) Although a claim for interest is merely an accessory claim to a main claim, the decision as to whether interest is to be granted in accordance with Section 44 SGB I represents an independent administrative act. If the authority has decided on interest in the disputed decision If the decision is not expressly made, an action seeking interest is generally inadmissible.
2.) Burial in an existing (family) gravesite of the spouse is regularly required, taking into account the postmortem protection of personality derived from Article 1 Paragraph 1 of the Basic Law (GG) and the protection of marriage and family derived from Article 6 Paragraph 1 of the Basic Law to the appropriate wishes of the deceased and must therefore be taken into account in accordance with Section 9 Paragraph 2 Sentence 1 SGB .
3.) The costs for death certificates are not recognized according to Section 74 SGB is sufficient.
4.) Reminder fees and late payment surcharges that arise from insufficient or late payment from the social welfare provider are not directly related to the funeral and therefore cannot be recognized within the scope of Section 74 SGB XII. If necessary, the takeover can be prosecuted in accordance with the principles of official liability in accordance with Section 839 of the German Civil Code (BGB) before the civil courts responsible for this.
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and AsylbLG
5.1 – Neuruppin Social Court, decision of January 20, 2022 (S 27 AY 2/22 ER):
Principle Dr.
Manfred Hammel A restriction of entitlement in accordance with Section 1a Paragraph 3 Sentence 1 in conjunction with Paragraph 1 AsylbLG is justified for a person entitled to benefits in accordance with Section 1 Paragraph 1 No. 4 AsylbLG if the procurement of identity papers is not objectively possible and subjectively reasonable and contributed in a way, e.g. B. no contact is made with relatives or other relatives still living in the country of origin so that a valid passport or passport replacement can be issued.
A reduction decision made at the same time with reference to Section 14 Paragraph 1 AsylbLG for a period of six months represents an illegal administrative act that does not respect the rule of law principle of proportionality, if this is not stated here in any form, which is why the maximum duration of this on this basis Claims are restricted and which discretionary considerations were of decisive importance here. Section 14 Paragraph 1 AsylbLG grants the responsible authority a dutiful discretion regarding the duration of the restrictions on claims it has imposed, which must always be used in individual cases. Anything else represents an unlawful misuse of discretion.
6. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other law books
6.1 – LSG Schleswig-Holstein, judgment of December 13, 2021 – L 7 R 122/19
Social law administrative procedure - reimbursement claims between service providers - claim of the subordinate basic security provider against the pension insurance provider due to the approval of a widow's pension - increased widow's pension in the quarter of death - basic security for job seekers - income consideration - earmarked income - expressly stated purpose
Orientation sentence editor of Tacheles e.
V. 1. The increased widow's pension in the so-called quarter of death is not a benefit provided in accordance with public regulations for an expressly stated purpose within the meaning of Section 11a Paragraph 3 Sentence 1 SGB II.
2. The quarterly death bonus serves to secure the surviving dependent's livelihood during the transition period and thus has the same purpose as the benefits of SGB II.
Source: www.gesetze-rechtsprachung.sh.juris.de
6.2 – OWN SHARES FOR ACCOMMODATION IN COLLECTIVE ACCOMMODATIONS FOR REFUGEES
a contribution from RA Volker Gerloff
further: www.ra-gerloff.de
6.3 – Update of data on reasonable costs of accommodation in the Göttingen district
The page with appropriate limits for accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II, Section 35 Paragraph 1 and 2 SGB XII and Section 3 Paragraph 3 Sentence 3 AsylbLG in the Göttingen district has been completely revised and updated the values for the period from January 1st, 2022 adjusted.
continue with RA Sven Adam
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
