Federal Social Court defined social data protection in the basic security for jobseekers
Kassel (ADR) on 19.09.2008, the 14th Senate of the Bundessozaigerichts (SPA) last instance ruled that recipients of basic security for jobseekers become a regular account statements must provide at least the last three months prior to application, if requested the Working Group (ARGE) as a service provider so. This also applies to the case that power is applied to basic security once again (file number of the decision: B 14 AS 45/07 R).
forms the background to the decision the following facts: The plaintiff, a recipient of benefits of the basic allowance for job seekers, had refused in 2006 to teach bank statements for the last three months, as required by the consortium of him. He justified this by saying - take only so far This media information from the Court - that he did provide some account statements from the three months before the first application of articles already. Then it was the performance of the consortium responsible for Hartz IV (the power the basic security for jobseekers after the 2nd Book II has been denied) - Social Code.
Rightly so, the SPA has now decided.
The 14th Senate of the SPA raises crucial that they are necessary from the provision of bank statements, however, affirmed in a subsequent step, the proportionality, without it well to examine in more detail, however. After that, on production of bank statements by the recipient is generally necessary in order to understand the consortium to decide whether made over the last three months prior to application by the recipient for income or his other funds accrued by third parties.
This is the basic security for jobseekers a simmering dispute for some time - decided in favor of the view of the LSG NRW - especially between the country's social courts (LSGen) Hessen and North Rhine-Westphalia (NRW).
Had the Hessian LSG decided in a decision on interim measures in 2005 that one reason the fuse box - at least in cases of repeated application - can not require that a recipient repeatedly teach bank statements and got out of the consortium a concrete suspicion of benefit abuse. This is the Hessian LSG including the right to informational self-determination, with the Social Protection and has continued on the grounds that grab by the generalized request of the consortium to each recipient a benefit of arbitrary accusation of abuse.
which that LSG NRW - establish closer without the - rejected in 2007.
includes Basically, the SPA now turn to the decision of the LSG NRW, however, limits the same so as one that the blackening of expenditure items to the required supporting bank statements allowed, with an ethnic (including the court used the still common, but difficult politically loaded term "racial"), political, religious or to do on the sexual orientation of a recipient illustrative backgrounds.
Case Note:
The 14th Senate fails to recognize the SPA in a really fundamental way, the total protection of the social data protection for benefit recipients in the basic insurance. Taking only the previously exclusively present media report of the SPA, the decision is, however, well founded.
Apparently, the Court itself - a meaningful way - guided by the familiar from administrative law test of a triad of appropriateness, necessity and proportionality.
While the usefulness probably should be no doubt - the administration argued here regularly with the simplification of the process for them in the context of mass claims, as no doubt the provision of basic support services for job seekers (unfortunately) is - is already questionable whether the provision of bank statements to prove that not allowed on the Allowances available income or assets available, highly doubtful. Required a social administrative action (and for such it is, if the Working Group will request recipients, bank statements to prove his need to teach) regularly only if there are no less restrictive means of detection by the recipient. In addition, bank statements only give a picture against the past situation, but never one of the current. This is important because it also Hartz IV is not a pension equal power, ie, a performance similar to social assistance, which - basically - in each case from day to day granted is what the performance assessments fool always a bit of time.
So it is generally not clear why someone who benefits under Hartz IV refers, its information duty of disclosing ARGE income and wealth (the same is, however, common ground and completely understandable, it is still Hartz IV services just a tax-financed basic income, and not a contributory insurance claims), the Authority also has to inform all of its expenses.
is the decision problem in as much as the proportionality action provision of bank statements simply assumed without this - how about a constitutional requirement - to examine in more detail.
In making such an assessment would be the decisive Senate that is noticed that the provision of statements may well be subject to the right of informational self-determination. Whether this is indeed the case or not, should have been reviewed revision law. Since this has not been obvious, the relevant criteria which the Federal Constitutional Court on concrete data protection rules only just returned several times lately has the minimum sentence is constitutionally vulnerable.
that the SPA in this case the social data protection, at least - under European law compliant - as it clarifies that expenses associated with a discrimination event after the General Equal Treatment Act (AGG) can go hand in hand, is basically tosh. These criteria were all already covered by the general principle of equality under Article 3, paragraph 3, sentence 1 of the Basic Law (GG). Also "forgets" to the Senate the special protection against discrimination of disabled people, which derives from Article 3, paragraph 3, sentence 2 Basic Law.
Total largely ignores the court, including data protection, including social data protection, really is intended, namely to hold the State will "tap off" and most personal information of a personal nature that do not concern him.
It has not interested in a service provider of basic security for jobseekers par excellence, for which uses a power authorized the service received, unless he can prove that a specific abuse of the benefit granted.
We are at a further problem with which the Senate has dealt not obvious, namely the fact that hardly any power is entitled to be stupid, a power abuse also directly operate through its Giralgeldkonto.
Last but not least - and that is the main focal point that has the SPA in the present case probably not really explained - the general assumption is to each recipient, he could be a potential benefit fraudster, a absolute affront to the vast majority of the bona fide beneficiaries. For an almost marginalized potential for benefit fraudsters all recipients are placed under general suspicion, even operate abuse.
If you are not already on the full extent of the measure on suspicion independent case in the examination with regard to the social data protection, so it must be an actually but not later than the examination of the suspected abuse decoupled General desire for personal information that the consortium as a rule, nothing will be able to start, but is already a fact, one could at least make shiver.
course it is understandable that the work required to operate the consortiums and the not may escalate out of hand. By providing account statements, the consortiums and represents no additional work, which usually is not even necessary.
