Employable beneficiary

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In Germany , the term employable beneficiary (ELB) is a term from the law of basic security for job seekers in Book Two of the Social Code ( SGB ​​II ). The term defines the elementary fact that must exist so that a person can claim benefits according to SGB II.

Up until the amendment to SGB II, which came into effect retroactively on January 1, 2011, the person in need of assistance was used instead of a beneficiary . The legal situation was not changed by changing the terminology. The definition of the old term was adopted unchanged for the new term.

Legal definition

The legal definition of an employable beneficiary can be found in Section 7 (1) SGB II. Accordingly, an employable beneficiary is someone who:

  1. has reached the age of 15 and has not yet reached the regular retirement age ( Section 7a SGB ​​II),
  2. is employable ,
  3. is in need of help and
  4. has his habitual residence in the Federal Republic of Germany.

Even those who do not meet these criteria can receive benefits in the form of social benefits if they live in a community of needs with an employable beneficiary (see Section 7, Paragraph 2, SGB II). The Federal Agency also speaks of a beneficiary who is not able to work .

Earning capacity

According to Section 8, Paragraph 1 of Book II of the Social Code, anyone who is not able to work for at least three hours a day under the usual conditions of the general labor market is not for the foreseeable future due to illness or disability . This excludes both people whose earning capacity has been found to be less than 3 hours, as well as people who cannot work under the usual conditions of the general labor market (e.g. only in a workshop for disabled people ).

According to Section 8 (2) of the Second Book of the Social Code, foreigners are deemed to be unable to work within the meaning of the law if they are not and cannot be allowed to take up employment. The possibility of taking up employment subject to approval in accordance with Section 39 of the Residence Act (so-called priority test ) is sufficient for determining earning capacity. Since a separate work permit is only available in exceptional cases and a residence permit issued is in almost all cases associated with the right to work, this reason for exclusion should only apply to foreigners in very rare cases.

Need for help

According to Section 9, Paragraph 1 of Book II of the Social Code, those in need of help are those who cannot or cannot sufficiently secure their livelihood from the income or assets to be taken into account and who do not receive the necessary help from others, in particular from relatives or other social benefits providers. According to this, people who are gainfully employed can also be in need of assistance, but their income is not sufficient to provide for themselves (and possibly the other members of the community of need) (so-called top - up ).

According to Section 9 (4) SGB II, help is also required if the immediate consumption or realization of assets to be taken into account is not possible or for whom this would mean particular hardship. In this case, benefits should be granted as a loan ( Section 24 (5) SGB II).

If people in need live in a household with relatives or by marriage, it is assumed according to Section 9 (5) SGB II that they will receive benefits from them, provided this can be expected based on their income and assets. Such a household community only exists if these persons live and work together; the burden of proof for this lies with the basic security provider.

Community of needs

According to Section 7 (3) SGB II, certain groups of people form a community of need, so that they are always assessed together. These are:

  1. the employable beneficiary himself
  2. the parents living in the household or one of the parents living in the household of an unmarried, employable child who is not yet 25 years old and the partner of this parent living in the household
  3. as partner of the beneficiary
    1. the spouse who is not permanently separated,
    2. the life partner who is not permanently separated
    3. a person who lives with the employable beneficiary in a joint household in such a way that, after reasonable appreciation, the mutual will can be assumed to bear responsibility for and stand up for one another,
  4. the unmarried children belonging to the household of the persons named in numbers 1 to 3, if the children are not yet 25 years old and cannot secure their livelihood from their own income or assets.

If the income of the community of need is insufficient to supply the entire community of need, the entire community of need is deemed to be in need of help in relation to its own needs to the total need. The income of both spouses and children who are not yet 25 years old are taken into account together ( Section 9 (2) SGB II). This is considered problematic, especially if there are no civil-legal maintenance claims and the maintenance payments fictitious by law to the benefit community cannot actually be realized, for example in the relationship between adult children and their parents or in the relationship between fake (unmarried) step-parents and their stepchildren . A refutation of the community of need is not provided for in the law. However, in a ruling of July 27, 2016, the Federal Constitutional Court confirmed the basic legality of including adult children in the community of need of the parents, assuming that if the parents seriously refused to provide support, the child would not be included in the community of need. This decision was heavily criticized in public; it actually leads to the destruction of the family bond by forcing parents to put their children on the street so that they can receive social benefits. Due to the construct of the community of need, poverty is as contagious as leprosy, and those affected are marginalized, similar to leprosy sufferers.

Individual reasons for exclusion

Even if the prerequisites for being considered as an employable beneficiary are met, certain reasons can still lead to the exclusion of benefits.

Inpatient accommodation

According to Section 7 (4) SGB II, there is no entitlement to benefits if the applicant is accommodated in an inpatient facility.

The definition of “inpatient facility” was controversial in case law. The courts originally used the term “legal fiction of incapacity” for this purpose. If the person was so involved in the day-to-day routine of the facility that theoretical employment of more than three hours seemed impossible, the benefit was excluded. This led to curious decisions, for example, even outdoorsmen were awarded benefits under SGB II, although they are already fully integrated into the system of the Prison Act . Because of this, an express exclusion has been in effect since then for prisoners, even if they should be able to pursue gainful employment to the required extent due to detention.

Finally, the Federal Social Court decided to abandon this term. An inpatient facility is now defined by the fact that it provides services within the meaning of Section 13 (2) SGB XII (care, treatment, etc.), these are actually provided inpatient (and not, for example, outpatient) and that the person is actually accommodated .

The law makes two exceptions to this exclusion of benefits. On the one hand, the exclusion of benefits does not apply if the person is accommodated in a hospital for a period of up to six months . The term “hospital” includes not only hospitals in the narrower sense, but also preventive and rehabilitation facilities such as rehab clinics; Who is the cost bearer of inpatient accommodation plays no role in the question of the exclusion of benefits. The decisive time for the prognosis is the day of admission to the hospital. If a past inpatient placement has already led to an exclusion of benefits and the person concerned has already received benefits under SGB XII for this reason, further inpatient placement in another hospital immediately afterwards does not lead to entitlement to benefits under SGB II; The probable duration of this placement is irrelevant.

On the other hand, the exclusion of benefits does not apply if the person actually works from the inpatient facility for more than three hours a day.

Drawing a retirement pension

The receipt of a pension due to old age , miners' compensation or a similar benefit under public law leads to the exclusion of benefits according to Section 7 (4) SGB II. Typically, this group of people is assumed to have left working life when they retire and no longer need to be integrated into work.

Foreign pensions can also count as “similar benefits under public law” if they are comparable to a German old-age pension, even if the retirement age abroad is lower than in Germany.

Violation of the accessibility order

According to Section 7, Paragraph 4a of the Second Book of the Social Code, those who violate the accessibility regulations of the Federal Employment Agency are excluded from benefits under SGB II . Although the text of the law now contains a newer regulation, according to Section 77 (1) SGB II, the old regulation continues to apply until a special order for the legal system SGB II has been issued.

Since the accessibility order was originally designed for recipients of unemployment benefit , exceptions to the obligation to be available must be made for certain groups of people, contrary to the wording of the regulation. So recipients of social benefits do not have to submit to the availability order, since placement in work is excluded from the outset for this group of people. The availability order is also not applicable if a recipient of ALG II is not available for placement because he is a single parent and looks after a child under three years of age.

Foreigners

The treatment of foreigners in Book Two of the Social Code (SGB II) is one of the most controversial regulations that has already seen numerous changes in its short history. Especially due to the high standard rates compared to the EU and in particular the EU enlargement to the east in 2004 with its inclusion of numerous poor countries in the Schengen area , more and more EU foreigners are moving to Germany to claim benefits under SGB II. At the end of 2017, 438,850 EU foreigners were receiving benefits under SGB II, 164,851 of them from Bulgaria and Poland.

The following two cases are relatively unproblematic:

  • Foreigners who are entitled to benefits in accordance with the Asylum Seekers Benefits Act , in particular asylum seekers and foreigners with a Duldung
  • foreigners who are not gainfully employed and their family members for the first three months of their stay, unless they have a residence permit for international, humanitarian or political reasons ( Section 7, Paragraph 1, Clause 3 SGB II); This does not include foreign family members of German citizens. The European Court of Justice has confirmed the admissibility of this rule in the Garcia-Nieto case.

The third case, however, is very problematic; according to this, foreigners whose right of residence arises solely from the purpose of looking for work and their family members are excluded. This applies in particular to EU citizens who are new to Germany and are neither gainfully employed nor can claim another right of residence, for example as a family member of an employed person.

If the EU foreigner takes up gainful employment or self-employment in Germany and thereby acquires a right of residence as an employee, the reason for exclusion does not apply and he is entitled to (supplementary) benefits according to SGB II. Any work is considered to be gainful employment in this sense that is not "completely subordinate and immaterial". The amount of the salary and the number of hours per week do not play a decisive role. However, if the number of hours per week is less than 10 hours, it must be checked in each individual case whether this is still gainful employment within the meaning of EU law. Indications for this could be long years of service with the company or the granting of employee rights such as paid vacation, continued payment of wages in the event of illness or a valid collective agreement. After one year, the EU foreigner acquires a permanent right of residence as an employee and, even in the event of unemployment, can receive unlimited benefits under SGB II. If the employment lasted for less than a year, the EU foreigner retains the right to stay for six months as a person entitled to remain. ( Section 2 (3) FreizügG / EU).

The Federal Social Court ruled in October 2010 that the benefit exclusion does not apply to EU foreigners whose country of origin is a signatory to the European Welfare Agreement (EFA). However, the Federal Government then declared a reservation to the EFA, according to which it no longer wants to apply it to SGB II. The European Court of Justice confirmed the exclusion of benefits in two cases. In the Dano case, the court ruled that the exclusion of benefits is even more permissible for foreigners if they cannot assert any material right of residence at all (so-called “first right rule”). In the Alimanovic case, the court ruled that the exclusion of benefits is also permissible for foreigners whose right of residence arises from the purpose of job search. The Federal Social Court thereupon decided that the reservation to the EFA is admissible, but foreigners can instead claim support for living under SGB ​​XII if they have a permanent stay in Germany (at least six months). This has sparked a great controversy in Germany, several courts have expressly opposed the decision of the Federal Social Court, cities such as Offenbach am Main announced that they will deport EU foreigners to their home country in the future . The difficulty in this case lies in the fact that in 2013 the Federal Constitutional Court ruled on the Asylum Seekers Benefits Act that the basic right to a decent subsistence level cannot be relativized in terms of migration policy, i.e. foreigners cannot be denied the subsistence level in order to reduce the incentive to emigrate to Germany or to encourage foreigners already in Germany to return to their home country. It is to be expected that there will be further reactions from the courts or politicians on this subject.

With the law on the regulation of claims of foreign persons in the basic security for job seekers according to the second book of the social security code and in the social assistance according to the twelfth book of the social code, the federal government regulated the benefit entitlement of EU foreigners with effect from December 29, 2016. These should now only be able to draw benefits after a legal stay of five years, otherwise only the costs of the return journey to the home country and bridging benefits will be provided as benefits in kind until the return journey. Recourse to SGB XII is now excluded. In addition, those EU foreigners are now also excluded, whose right of residence results from attending school or the vocational training of a child in Germany; however, the compatibility of this regulation with European law is controversial.

trainee

Apprentices are also employable beneficiaries. However, if they pursue training that is at least fundable under the Federal Training Assistance Act (BAföG), they are excluded from benefits under Section 7 (5) SGB II and can only claim benefits for trainees . It is only a matter of abstract eligibility, whether the trainee is actually entitled to these benefits or whether he is excluded for individual reasons (e.g. due to a change of subject), does not matter. Studying at a university of applied sciences for public administration also triggers an exclusion of benefits, even though such training is expressly excluded from funding due to § 2 Paragraph 6 BAföG.

In borderline cases, it can be disputed whether an apprenticeship is actually carried out, for example with a student during a semester on leave . It depends on whether the student is still enrolled in a particular subject (and can thus take part in events and take exams) and whether he is actually working as a student during the semester of leave. If at least one of the two criteria is not met, the training will not be carried out and the student can claim benefits according to SGB II. As a result, however, the student can be referred to taking up a full-time job during the semester of leave.

With the ninth law amending the second book of the social security code , the previously applicable strict exclusion of benefits for trainees was considerably relaxed. Apprentices whose training is eligible according to § 51 , § 57 or § 58 SGB ​​III ( vocational training allowance) are no longer excluded from benefits, unless they are accommodated with the trainer or in a boarding school. If people receive Bafög for attending school (benefits according to § 12 BAföG) or if they are studying and still live with their parents, they can top up the Bafög received with benefits to support themselves. This also applies if the application is still being processed or is rejected solely because of excessive personal income or the income of the parents.

Whether the exclusion of benefits also applies to people who receive training allowance was disputed in the case law. The cases in which the trainee in a boarding school z. B. a vocational training center, since the costs of boarding school accommodation are covered here, but not the costs for the apartment, on which the trainees are still dependent on the weekends and during the holidays. As a result, the apprentices are threatened with homelessness. With the amendment to the law, however, it has now been made clear that the eligibility of the training is no longer relevant, unlike under the previous legal situation. However, a hardship loan may come into consideration, which the Federal Social Court has specifically approved in the case of a vocational training measure.

An exclusion of benefits does not occur when starting professional training that is funded under the Advancement Training Assistance Act (so-called “Master BAföG”). However, the benefits granted as maintenance allowance reduce the needs of the beneficiary and in some circumstances eliminate the need for assistance; contrary to the other rules for crediting income, this also applies to the part granted as a loan.

Relatives of trainees who live with them in a community of need (e.g. children) can continue to claim social benefits.

Section 7 (6) of the Second Book of the Social Code (SGB II) stipulates some exceptions in which the entitlement to the Second Book of the Social Code is still given even though the training is eligible for funding:

  1. Anyone who attends a general school ( grammar school , technical college , vocational preparation year , basic vocational training year ) and is excluded from BAföG benefits because they still live with their parents is entitled to unemployment benefit II.
  2. Anyone who attends evening school and is older than 30 years of age, so that there is no entitlement to BAföG benefits, can receive unemployment benefit II while attending school.

Individual evidence

  1. ↑ By the law for the determination of standard needs and the amendment of the second and twelfth books of the Social Security Code of March 24, 2011, Federal Law Gazette I p. 453.
  2. ↑ BSG, January 27, 2009, B 14 AS 6/08 R
  3. ^ BSG, November 13, 2008, AZ B 14 AS 2/08 R
  4. ↑ BVerfG, July 27, 2016, 1 BvR 371/11
  5. ^ Hartz IV judgment - now poverty is contagious . In: Stern.de , September 8, 2016
  6. ↑ BSG, September 6, 2007, AZ B 14 / 7b AS 16/07 R
  7. ^ BSG, May 7, 2009, AZ B 14 AS 16/08 R
  8. ↑ BSG, February 24, 2011, AZ B 14 AS 81/09 R
  9. ↑ BSG, June 5, 2014, AZ B 4 AS 32/13 R
  10. ↑ BSG, December 2, 2014, AZ B 14 AS 66/13 R
  11. ↑ BSG, November 12, 2015, AZ B 14 AS 6/15 R
  12. ↑ BSG, May 16, 2012, AZ B 4 AS 105/11 R
  13. ↑ LSG Baden-Württemberg, July 14, 2010, AZ L 3 AS 3552/09
  14. ↑ LSG Berlin-Brandenburg, August 15, 2013, AZ L 34 AS 1030/11
  15. ↑ Every tenth Hartz IV recipient comes from Syria
  16. ↑ BSG, January 30, 2013, AZ B 4 AS 37/12 R
  17. ↑ ECJ, February 25, 2016, AZ C-299/14
  18. ↑ ECJ, February 4, 2010, AZ C-14/09
  19. ↑ ECJ, November 11, 2014, AZ C-333/13
  20. ↑ ECJ, September 15, 2015, AZ C-67/14
  21. ↑ BSG, December 3, 2015, AZ B 4 AS 43/15 R
  22. ↑ City reacts to the judgment of the social court on EU foreigners: Instead of social assistance, withdrawal of the right of residence - op-online
  23. ^ BSG on social benefits for EU citizens: minimum benefits even without right of residence - LTO
  24. ↑ Hartz IV: Social benefits for EU foreigners only after five years ( memento of the original dated September 6, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.zeit.de
  25. ↑ The exclusion of benefits for Union citizens in training does not conform to European law
  26. ↑ BSG, September 6, 2007, AZ B 14 / 7b AS 36/06 R
  27. ↑ BSG, August 19, 2010, AZ B 14 AS 24/09 R
  28. ↑ BSG, March 22, 2012, AZ B 4 AS 102/11 R
  29. ↑ BSG, August 22, 2012, AZ B 14 AS 197/11 R
  30. ↑ Dirk Hölzer: Exclusion of benefits in training . In: info also. No. 4, 2013
  31. ↑ BSG, February 17, 2015, AZ B 14 AS 25/14 R
  32. ^ BSG, February 16, 2012, AZ B 4 AS 94/11 R