1. Decisions of the Federal Social Court on basic income support under the German Social Code, Book II (SGB II) and on social assistance under the German Social Code, Book XII (SGB XII)
1.1 – BSG, judgment of May 8, 2019 – B 14 AS 20/18 R
One-off accommodation-related expenses are also covered by Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) and are to be recognized as actual needs in the month they are due, but not to be spread over longer periods
Guiding principle (Editor)
1. One-off costs for the procurement of heating material are to be covered as current needs in the month of due date in accordance with Section 22 Paragraph 1 Sentence 1 SGB II, even if the need for assistance arises solely in the month of procurement due to the stockpiling of heating material.
2. The German Social Code, Book II (SGB II), does not contain a legal basis for the distribution of the need for heating material that arises in a specific month and has been purchased for a longer period.
Source: socialcourtsability.de
1.2 – BSG, Judgment of October 30, 2019 (B 14 AS 2/19 R):
Guiding principle Dr. Manfred Hammel:
The entitlement to benefits under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) aims to secure the basic need for housing and therefore generally only covers the reimbursement of expenses for the actual, specific apartment used, which constitutes the current, spatial center of life and covers the existing housing needs.
The current accommodation needs are generally only met by one apartment.
From a legal perspective regarding social security, the simultaneous securing of multiple accommodations through ongoing benefits is not an option.
However, an exception may apply in the month of moving from an old, abandoned apartment to a new one, if there are contractual obligations to make payments for accommodation and heating for both apartments ("double rent" or "overlap costs"), and both apartments are actually used.
If the accommodation needs in the month of a move are met by the actual use of both the previous and the new apartment, the actual expenses for both apartments forming a center of life in that month may be recognized as needs for accommodation and heating in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
This generally presupposes – in addition to the abstract appropriateness of the respective expenses – that the temporal overlap of both the contractual obligations and the actual use is unavoidable in the individual case, and that the needs therefore also appear to be concretely appropriate.
Housing procurement costs within the meaning of Section 22 Paragraph 6 Sentence 1, 1st Half-Sentence of the German Social Code, Book II (SGB II) are supplementary expenses that must be distinguished from the benefits under Section 22 Paragraph 1 Sentence 1 of the SGB II for accommodation and heating.
The costs for the accommodation actually used, either the previous one or the new one, are each to be recognized as a need within the framework of Section 22 Paragraph 1 Sentence 1 SGB II.
In cases where the contractual obligations for payments for accommodation and heating overlap only for the previous and the new residence, the recognition of expenses for the unused accommodation is only possible under Section 22 Paragraph 6 Sentence 1, First Half-Sentence of the German Social Code, Book II (SGB II), which requires, in particular, prior confirmation from the SGB II agency at the place of departure. There is no "either-or" relationship between the regulations in Section 22 Paragraph 1 Sentence 1 SGB II on the one hand and those in Section 22 Paragraph 6 Sentence 1 SGB II regarding accommodation needs in relocation situations.
1.3 – BSG, judgment of 04/04/2019 – B 8 SUN 12/17 R
(Social court proceedings – joinder – filing of an application for participation pursuant to Section 14 of the German Social Code, Book IX (SGB IX) with the Job Center – necessary joinder of the Federal Employment Agency – social assistance – integration assistance – participation in community life – coverage of accommodation costs not covered by BAföG benefits – coverage by other benefits)
The guiding
principle is that the costs of accommodation for disabled people can also be covered by subsidies through integration assistance (social participation) benefits, insofar as costs are affected that exceed the abstractly reasonable housing costs due to the disability.
Source: www.bsg.bund.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Schleswig-Holstein State Social Court, Decision of 09.12.2019 – L 6 AS 152/19 B ER, L 6 AS 160/19 B PKH – legally binding
Basic income support for job seekers – Exclusion of benefits for foreigners – habitual residence in Germany for at least five years – Credible evidence – Non-requirement of continuous and registration-compliant registrations
Entitlement to provisional benefits to secure livelihood under the German Social Code, Book II (SGB II)
Guiding principle (Editor)
1. The Senate continues to assume that, for the existence of the narrowly defined exception to the general rule in Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II), continuous and, moreover, registration in compliance with registration law with the competent authority is generally the appropriate means of substantiation or, in legal proceedings, of proof (cf. decision of the Senate of May 4, 2018 – L 6 AS 59/18 B ER).
2. However, to consider this as the only suitable means of substantiating or proving the existence of the exception to the general rule under Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II), would go too far (see also Hamburg Higher Social Court, decision of June 20, 2019 – L 4 AS 34/19 B ER – juris para. 5; Berlin-Brandenburg Higher Social Court, decision of June 6, 2017 – L 15 SO 112/17 B ER – juris para. 25; North Rhine-Westphalia Higher Social Court, decision of April 23, 2018 – juris para. 21; contra: Hesse Higher Social Court, decision of October 16, 2019 – L 7 AS 343/19 B ER). This is neither in accordance with the wording of Section 7 Paragraph 1 Sentences 4 and 5 of the German Social Code, Book II (SGB II), which refers only to registration with the competent registration authority for the commencement of the time limit, nor with the explanatory memorandum to the law (Bundestag printed matter 18/10211, p. 13 et seq.)
Source: socialcourtsability.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 12 December 2019 – L 31 AS 2294/16
Guiding principle (Editor):
On the deductibility of travel expenses and interest and amortization for the purchase of a motor vehicle for commuting to work, both are denied here.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Heilbronn, judgment of May 28, 2019 – S 6 AS 2693/17
Guiding principle (Editor)
: Rent ceilings in Heilbronn are unlawful – the city of Heilbronn's "conclusive concept" for determining the reasonable limit is unsuitable (based on SG Heilbronn, 13.02.2019 – S 7 AS 1912/17).
Source: socialcourtsability.de
3.2 – Social Court Frankfurt (Oder), Judgment of 27 November 2019 – S 39 AS 1759/18
Sickness benefit – distinction between back payment and current income (contrary to SG Berlin, judgment of 18 January 2019, file number S 37 AS 12211/18)
Guiding principle (Editor):
1. In a recent decision regarding the distinction between ongoing sickness benefits and back payments of sickness benefits, the Berlin Social Court, referring to Section 47 Paragraph 1 Sentence 7 of the German Social Code, Book V (SGB V), ruled that a back payment within the meaning of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), always exists if the monthly amount of sickness benefits received in the respective month of receipt exceeds 30 daily rates (see Berlin Social Court, Judgment of January 18, 2019, Case No. S 37 AS 12211/18, paragraphs 36 et seq.). The Chamber does not concur with this ruling, as this approach does not correspond to the legislative intent behind the introduction of the provision in Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II).
2. In the case of sickness benefit payments, a decision must be made, in accordance with the legislative intent of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), as to whether the payment constitutes a back payment or not. As is clear from Section 11 Paragraph 3 Sentence 2 of the SGB II, back payments are not to be considered one-off income within the meaning of Section 11 Paragraph 3 of the SGB II if they are paid for the month in which they are received. The provision of Section 11 Paragraph 3 Sentence 2 of the SGB II is intended to cover (back) payments that do not serve to cover living expenses in the month of receipt.
3. Given that sickness benefit is income replacement, which is regularly calculated across multiple months for several weeks, a sickness benefit payment can only constitute a back payment not intended to secure subsistence in the month of receipt within the meaning of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), if the sickness benefit is either not actually paid on an ongoing basis (for example, in the case of back payments due to recalculations, subsequent approvals, for significantly earlier periods, etc.) or if it is paid for such a long period that it includes payments beyond the current subsistence level that no longer serve this purpose. This is not the case with ongoing sickness benefit payments, at least not if they cover periods of incapacity for work in the month of receipt and the preceding month, as these payments are still considered a basis for the insured person's current needs in the month of receipt.
Principle (Juris)
1. Sickness benefit is current income which, according to § 11 para. 2 sentence 1 SGB II, is generally to be taken into account in full in the month of receipt.
2. Sickness benefit is not to be treated as a one-off payment pursuant to Section 11 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II), since, according to its legal basis, it is not paid at intervals longer than one month (following: Berlin-Brandenburg State Social Court, judgment of October 10, 2018, file number L 31 AS 462/18).
3. Back payments within the meaning of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) are generally income that is not paid at the due date, but at a later date. However, since sickness benefit is due with each day of incapacity for work and is regularly calculated for periods of several weeks, the due date of the benefit cannot be the determining factor in the case of sickness benefit.
4. According to the intent of Section 11 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), a sickness benefit payment is only to be considered a back payment if sickness benefit is not paid continuously or for such a long period that it no longer serves to cover current living expenses. A sickness benefit payment for one day of the month in which it is received and the preceding month still covers current living expenses (deviation from the ruling of the Berlin Social Court, judgment of January 18, 2019, file number S 37 AS 12211/18).
Source: socialcourtsability.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Schleswig-Holstein State Social Court, Judgment of 27 November 2019 – L 9 SO 20/18
The relationship between the cash amount pursuant to Section 27b Paragraph 2 of the German Social Code, Book XII (SGB XII) and Section 54 Paragraph 2 of the German Social Code, Book XII (SGB XII) touches upon the fundamental question of whether subsistence-securing funds under Chapter Three must be used for integration assistance benefits.
Guiding principle (Editor):
The cash amount is not to be used to cover a benefit under the Sixth Chapter of Integration Assistance, in this case family home visits.
Principle (Juris)
1. From the systematic structure and the meaning and purpose of the regulations on integration assistance for disabled persons according to §§ 53 ff. SGB XII, it follows that allowances for the purpose of visiting family members pursuant to § 54 para. 2 SGB XII, relating to the person entitled to benefits under § 53 para. 1 SGB XII, are to be classified as an integral component of the integration assistance granted to disabled persons in an inpatient facility.
2. Allowances under Section 54 Paragraph 2 of the German Social Code, Book XII (SGB XII), for the benefit of those in need are not to be classified as subsistence assistance under Chapter Three of the SGB XII. Therefore, no unrestricted discretionary power is granted to the defendant
3. The social assistance provider shall cover the costs of home visits that it deems necessary as a subsidy if they are an integral part of the integration assistance measure for the recipient and no unreasonable requests are made regarding the means of transport.
Source: socialcourtsability.de
5. Decisions of the State Social Courts and Social Courts on Asylum Law
5.1 – LSG Schleswig-Holstein, decision of 23 December 2019 (L 9 AY 171/19 B ER):
Guiding principle by Dr. Manfred Hammel:
On the fundamental affirmation of a substantive claim to consideration of actual expenses relating to accommodation assigned under residence law pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG). The user fees demanded by the public authority are public-law fee claims that are at least equivalent to a legitimate demand for rent.
If these expenses should prove unreasonable in amount, then the costs would have to continue to be covered at least for a transitional period of "generally no more than six months" after the authorities have issued a request to reduce costs, in accordance with Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 35 Paragraph 2 Sentences 1 and 2 of the Social Code Book XII (SGB XII).
However, there are strict limits to the reasonableness of cost-cutting efforts here, because Section 61 Paragraph 1d Sentence 1 of the Residence Act confronts the clientele concerned with a special residence requirement, according to which a habitual residence can only be effectively established in a specific place.
5.2 – Social Court Freiburg, Decision of 20 January 2020 – S 5 AY 5235/19 ER
On the unconstitutionality of Section 2 Paragraph 1 Sentence 4 No. 1 Asylum Seekers' Benefits Act (AsylbLG) – Reduction of standard benefits under the Asylum Seekers' Benefits Act in communal accommodations
Guiding principle (Editor)
1. Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG (reduction of standard benefits to 90%) appears to be unconstitutional, at least in the interpretation carried out by the administration (based on SG Landshut, decision of 24.10.2019 – S 11 AY 64/19 ER).
2. The regulation in Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act also appears questionable from the perspective of the general principle of equality under Article 3 Paragraph 1 of the Basic Law.
The full text is available from Martin Weise
- Lawyer -
Note:
See also Social Court Landshut, decision of 23 January 2020 – S 11 AY 79/19 ER; Social Court Freiburg, 3 December 2019 – S 9 AY 4605/19 ER; Social Court Hannover, decision of 20 December 2019 – S 53 AY 107/19 ER
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Guidance on the topic of flight and migration: Social rights for refugees, 3rd updated edition published in 2020
here: www.der-paritaetische.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
