1. Decisions of the state social courts on basic security according to (SGB II)
1.1 – LSG Berlin-Brandenburg, judgment of 09/22/2022 – L 37 SF 294/20 EK AS
Guiding principles
§§ 198 ff. GVG as amended by the law on legal protection in excessively long court proceedings and criminal investigations (GRüGV)
A plaintiff is free to limit the subject matter of the lawsuit to a separable part of the overall proceedings and thus determine the subject matter of the proceedings (connection to BSG, judgment of February 12, 2015 - B 10 ÜG 7/14 R - Rn. 14 and BVerwG, judgment of August 17 .2017 – 5 A 2/17 D – Rn. 19).
However, the substantive and legal frame of reference for such a limited procedural request remains the entire legal procedure, even if it was conducted over several instances or before different courts (following BSG, judgment of March 24, 2022 - B 10 ÜG 4/21 R - Rn . 28 mwN).
The hearing complaint procedure does not initiate an independent procedure, but is attached as an annex to the previous procedure, which was initially ended here by the contested decision (connection to BSG, judgment of July 10, 2014 - B 10 ÜG 8/13 R - Rn. 14, BGH, Judgment of May 21, 2014 - III ZR 355/13 -, paras. 10 - 13 with further references, BFH, judgment of March 20, 2019 - XK 4/18 -, paras. 35 - 36).
As a rule, the Federal Social Court has the same amount of preparation and reflection time available for the individual proceedings as is the case with the lower courts. The fact that the Federal Social Court is not a factual authority does not justify any other decision.
For a procedure that is (also) treated as a revision procedure, there is usually a preparation and reflection period of twelve months.
The courts must be granted an additional preparation and reflection period of three months for a hearing complaint procedure (as already LSG Berlin-Brandenburg, judgment of June 5, 2022 - L 37 SF 216/20 EK AS - intended for publication in juris).
If there have been phases of judicial inactivity in both the lawsuit and the appeal proceedings that are not covered by the preparation and reflection times available to the social court and the state social court, the remaining delay times can in principle be covered by preparation and reflection times, which the Federal Social Court did not use up in the subsequent proceedings there will be compensated (connection to BSG, judgment of March 24, 2022 - B 10 ÜG 4/21 R - Rn. 28).
These times are to be used primarily to compensate for the delays that occurred first, even if these occurred in a phase of the procedure that was ultimately not made the subject of the compensation procedure.
Source: www.socialgerichtsabilities.de
1.2 – LSG Berlin-Brandenburg, decision of. October 11, 2022 – L 34 AS 587/22 B ER
Guiding principles
The third-country national parent of a Union citizen child may be entitled to benefits in accordance with Section 1 Paragraph 1 No. 5 AsylbLG if they do not have a right of residence. The accessory entitlement to benefits in accordance with Section 1 Paragraph 1 No. 6 AsylbLG can apply to the child itself.
In the event that another provider with primary responsibility is obliged to provide benefits, the job center cannot successfully assert a retroactive change in the performance obligation imposed by way of an interim order in the appeal process if it has already fulfilled this.
Source: www.socialgerichtsabilities.de
1.3 – LSG NRW, judgment of June 23, 2022 – L 6 AS 120/17
Accommodation costs in the Märkisches Kreis for recipients of SGB II/SGB
Here you can read the first press release from Attorney Lars-Schulte-Bräucker:
Press release from Attorney Lars Schulte-Bräucker on the accommodation costs in the Märkischer Kreis for recipients of SGB II/SGB XII benefits announced.
Excerpt: Tachele's case law ticker week 26/2022, point 1.4
Now on November 10th, 2022, the second press release from Attorney Lars Schulte-Bräucker will follow on this procedure, because the full text of this judgment is now available.
Press release from lawyer Lars Schulte-Bräucker on the proceedings against November 10, 2022
As already stated in my last press release, the judgment concerns the accommodation costs for benefit recipients according to SGB II/SGB
The State Social Court of North Rhine-Westphalia has now ruled in favor of the plaintiff to a large extent and has determined that the concept of the defendant Märkischer Kreis job center is not conclusive in the sense of the case law of the Federal Social Court.
This was mainly justified by the lack of representativeness and validity of the related data for the concept of the company analysis and concepts.
In this respect, the judgment states that the defendant job center was unable to prove an exact relationship between the individual landlord types in the requested data on which the concept was based, which is, however, absolutely necessary for the concept to be conclusive.
In this respect, according to the reasons for the judgment, the representation of all essential subgroups of the population with regard to the apartments of large landlords and small landlords in accordance with their share in the sample is not guaranteed. It cannot be determined to what extent and to what extent the rents from “small” or private landlords were taken into account.
In the present case, however, it was not possible to determine the ratio in which small and large landlords are represented in the data basis and therefore certainly not that this is not a disproportion, which is inadmissible according to the case law of the Federal Social Court.
For example, it was stated by the undersigned that the IGW, which claims to have more than 2,000 apartments, was completely ignored when drawing up the concept. In the opinion of the State Social Court, these deficiencies in the creation of the concept led to the lack of consistency in the Märkischer Kreis guidelines on accommodation costs.
It follows that, due to the lack of conclusiveness, the values according to the Housing Benefit Act plus a security surcharge of 10% must be granted as accommodation costs for the benefit recipients and thus also the plaintiff.
According to the State Social Court's statements, it will no longer be possible to reduce the costs of accommodation until a new concept is drawn up that is adapted to the judgment.
The company's other concepts, Analysis and Concepts, and the latest concept, which has been in effect since 2022, are also likely to have been developed according to the same standards.
Numerous other proceedings by other plaintiffs are pending at the Dortmund Social Court, which can now be decided on the basis of the reasons for the judgment.
The judgment did not allow an appeal against the decision.
The undersigned will be happy to answer any questions you may have
Lars Schulte-Bräucker
(lawyer)
Guidelines from Attorney Lars Schulte-Bräucker:
1. Accommodation costs in the Märkischer Kreis are too low for recipients of SGB II/SGB XII benefits, because the basic security providers do not have a coherent concept in the sense of the BSG case law.
2. Due to a lack of representativeness, the concept is not conclusive in the sense of the case law of the BSG.
3. The data material on which the concept of the basic security provider is based must provide information about the relationship in which individual types of landlords have been taken into account.
4. If it is not possible to determine the relationship between small and large landlords in the data, it cannot be assumed that the data collection is representative.
5. Due to the lack of conclusiveness of the concept, the values according to the Housing Benefit Act plus a security surcharge of 10% must be granted as reimbursable costs of accommodation.
1.4 – LSG NRW, judgment of August 9, 2022 – L 2 AS 1178/21
Scholarship from the German Academic Exchange Service (DAAD) and the reimbursement of health insurance contributions/premium payments are reduced by ALG II as a one-time income (leading principle editor of Tacheles e. V.).
Orientation aid editor of Tacheles e.
V. 1. Privileging the scholarship rate in accordance with Section 11a Paragraph 3 Sentence 1 SGB II is not possible.
2. The scholarship rate cannot be ignored according to Section 11a Paragraph 5 SGB II.
3. The reimbursement of health insurance contributions/premium payments is not excluded from being considered as income according to Section 11a SGB II, but rather represents income (LSG NRW, judgment of August 30, 2018 - L 6 AS 1676/17).
Source: www.socialgerichtsabilities.de
2. Decisions of the social courts on basic security according to (SGB II)
2.1 – SG Magdeburg, decision by. September 26, 2022 – S 34 AS 828/22 ER
Matters according to SGB II (AS)
Interim legal protection against cancellation of benefits due to an assumed absence
Principle
1. The SGB II service provider can only base its decision to refuse benefits for a future period on Section 7 Paragraph 4a SGB II if it is certain that the person otherwise receiving the benefit will not actually be in continuous service for more than six months without consent will stay in the area close to time and place. In any case, an assumption or forecast for future performance periods based on the statement of a neighbor is not sufficient.
2. The requirements for knowledge and need to know about accessibility in the area of time and location as a kind of residence requirement should not be set excessively high, since the legislator has not yet made use of his power to issue regulations.
3. The claim to remedy the consequences according to Section 86b Paragraph 1 Sentence 2 SGG requires a current emergency situation, which cannot generally be assumed for periods in the past.
Source: www.landesrecht.sachsen-anhalt.de
3. Decisions of the state social courts on employment promotion law (SGB III)
3.1 – LSG Berlin-Brandenburg, judgment of – L 14 AL 42/18
Guiding principles
Even if the Federal Agency may have made the appearance of a provisional decision, a legal and final grant of equal benefits was made (following the BSG, judgment of October 25, 1989 - 7 RAr 108/88 -, para. 23).
A reduction in the period of entitlement for the periods of receipt only ceases to apply subsequently if the Federal Agency obtains compensation for the unemployment benefit granted (connection to BSG, judgment of July 24, 1986 - 7 RAr 4/85 and of August 9, 1990 - 7 RAr 104/ 88).
Source: www.socialgerichtsabilities.de
4. Decisions of the state social courts on social assistance (SGB XII)
4.1 – LSG Baden-Württemberg, judgment of August 12, 2022 – L 2 SO 1906/18
Guiding principles
The term “domestic” care assistance in Section 64b SGB XII serves solely to differentiate it from inpatient care. For classification as home care assistance, it is not the location of the person in need of care that matters, but rather the type of service. If the care is carried out by an outpatient care service or an individual carer, it is “domestic” care assistance - regardless of whether it takes place at home with the person in need of care or elsewhere, for example at work.
Source: www.socialgerichtsabilities.de
4.2 – LSG Hessen, decision of. October 31, 2022 – L 4 SO 133/22 B ER
Guiding principles
1. On the need for a constitutional interpretation of Section 23 Paragraph 3 Sentences 3 to 6 SGB
2. According to Article 51 (1) of the Basic Law, fundamental Union rights are to be applied even if the substantive legal conditions of Directive 2004/38/EC are no longer met, but the legality of the stay can only be assumed under more favorable domestic law (following ECJ, judgment of July 15, 2021 - Case C-709/20).
Source: www.socialgerichtsabilities.de
5. Decisions on asylum law and AsylbLG
5.1 – LSG Bayern, decision by. 10/24/2022 – L 8 AY 106/22 B ER
Guiding principles
1. On the admissibility of applications for an order of suspensive effect and for the issuance of an interim order upon initial approval in the form of restricted benefits in accordance with Section 1a AsylbLG.
2. A violation of obligations to cooperate under asylum or residence law cannot lead to a restriction of claims in accordance with Section 1a Paragraph 3 AsylbLG if the requested act of cooperation is not possible for the person concerned due to illness. An original social law or social court examination must be carried out.
Source: www.socialgerichtsabilities.de
6. Miscellaneous information about Hartz IV, social assistance, asylum law, housing benefit law and other law books
6.1 – BSG, judgment of November 10, 2022 – B 5 R 29/21 R and B 5 R 31/21 R
Pension insurance – disability pension – existing pensioners – attribution period
Editorial principle of Tacheles e.
V. Existing pensioners are not entitled to have their pension redetermined due to total incapacity from January 1, 2019, taking into account the longer attribution period applicable to new pensioners from this point onwards.
Source: www.bsg.bund.de
Editor's note:
Unfortunately, I didn't expect anything different, but it's still a shame for the many pensioners!
Author of the case law ticker: Editor of Tacheles Detlef Brock
Source: Tacheles case law ticker
