1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – BSG, judgment of 09/11/2020 – B 8 SUN 8/19 R
BSG: Woman may have to use care allowance for husband's funeral
If a woman cares for her husband until his death, she may have to use the care allowance she receives for this purpose towards funeral expenses. If the money is deposited into the account before his death, it generally becomes part of the deceased's estate, which must be used for the funeral.
Source: nuernberger-blatt.de
1.2 – BSG, judgment of July 3, 2020 – B 8 SO 27/18 R
Social assistance – basic income support for the elderly and those with reduced earning capacity – income support – incentive allowance for participation in a day-structuring program – allowances from the Integrated Service Workshop (IAW)
Guidance note (Editor)
1. The donations are not tax-exempt donations from independent welfare organizations.
2. However, the income in question is a gift within the meaning of Section 84 Paragraph 2 of the German Social Code, Book XII (SGB XII), which is provided by another person without any legal or moral obligation to do so. Such gifts should be disregarded as income insofar as their consideration would constitute a particular hardship for the benefit recipient in the individual case.
3. The concept of "particular hardship" does not allow for a fixed upper limit based on specific income thresholds up to which a grant would be disregarded.
Source: socialcourtsability.de
Note:
Social assistance: Voluntary motivational bonuses are not taken into account, an article by attorney Helge Hildebrandt
Incentive payments for participation in a day-structuring measure are not to be counted towards social assistance.
The plaintiff was a recipient of basic income support for the elderly and those with reduced earning capacity who attended the Integrated Service Workshop (IAW) in Schleswig and received voluntary payments of €1.60 for each hour of his attendance as an incentive for participation. The responsible basic income support provider considered these payments, less a monthly allowance of €63, as income.
The Federal Social Court ruled that the IAW's motivational bonuses were unlawful. The court reasoned that the bonuses in question constituted benefits within the meaning of Section 84 Paragraph 2 of the German Social Code, Book XII (SGB XII), provided by another party without any legal or moral obligation to do so. Such benefits are to be disregarded as income if their inclusion would constitute undue hardship for the benefit recipient in a specific case. Contrary to the opinion of the Schleswig Social Court, the concept of "undue hardship" does not allow for a fixed upper limit, based on specific income thresholds, up to which a benefit would be exempt from consideration. If the benefit serves as an incentive to actively reduce or overcome existing disability-related limitations regarding participation in community life through regular participation in the program, and if—as in this case—the amount of the benefit clearly indicates no connection to success in the activity, then it would constitute undue hardship if even a portion of this benefit were considered income.
Federal Social Court, Judgment of 12 July 2020, B 8 SO 27/18 R
First published in HEMPELS 09/2020
by attorney Helge Hildebrandt
1.3 – BSG, Judgment of July 3, 2020 (B 8 SO 2/19 R):
Guiding principle Dr. Manfred Hammel:
Insofar as a social welfare agency claims reimbursement of costs from a legal guardian (§§ 1896 ff. BGB) for expenses to cover the care needs (§§ 61 ff. SGB XII) of the person under guardianship and for their (included in the assistance for care) living expenses (§ 27b SGB XII), the scope of application of § 103 para. 1 SGB XII (“reimbursement of costs in the event of culpable conduct”) is in principle also open to this legal guardian.
A decision regarding the claim for reimbursement of costs pursuant to Section 103 Paragraph 1 of the German Social Code, Book XII (SGB XII) is only sufficiently specific within the meaning of Section 33 Paragraph 1 of the German Social Code, Book X (SGB X) if the addressee of this administrative act can easily recognize for which social assistance benefits the authority is demanding reimbursement of costs from him in detail.
In the case of a claim for reimbursement of costs by the social welfare office due to "unclaimed benefits", it is unclear to the person designated as liable for repayment which (social assistance) benefits are specifically covered by this claim, or to what extent a need for social assistance pursuant to Section 19 Paragraphs 1 to 3 of the German Social Code, Book XII (SGB XII) has arisen as a result of these "unclaimed benefits", and therefore corresponding assistance has been granted by the social welfare provider.
A legal guardian already belongs to the addressees of this provision according to the wording of Section 103 Paragraph 1 Sentence 1 SGB XII ("for himself or others"), but also according to the meaning and purpose of this norm.
According to this, a social welfare provider can demand reimbursement of costs not only in the case of causing the need for social assistance for itself and its own relatives, but also in cases of other third parties, without these people having a special "guarantor position" vis-à-vis the financial interests of the social welfare office.
However, reimbursement of costs under Section 103 Paragraph 1 of the German Social Code, Book XII (SGB XII) is excluded if the conduct (or omission) of the legal guardian was not the cause of the person under legal guardianship's need for assistance. This applies particularly if there is an error in the advice provided by the social welfare agency, to which the entitlement to benefits can be substantially attributed. According to Section 14 Sentence 1 of the German Social Code, Book I (SGB I) in conjunction with Section 11 Paragraph 2 Sentence 3 of the German Social Code, Book XII (SGB XII), eligible persons must also be enabled by the social welfare agency to receive social benefits. This aspect is particularly relevant in a case where the loss of health and long-term care insurance coverage of a person receiving full-time inpatient care has come to the attention of the authorities.
1.4 – BSG, Judgment of July 3, 2020 (B 8 SO 5/19 R):
Guiding principle by Dr. Manfred Hammel:
An objection is successful within the meaning of Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), insofar as this legal remedy has been formally granted or approved by the responsible social security institution, or the objector has prevailed with their substantive claim. A causal link must exist between the filing of this legal remedy and a favorable decision on the objection.
This is lacking if an objection raised on the merits was unsuccessful because this legal remedy was rejected entirely as inadmissible, and the objector was only successful with his alternative claim for interest (§ 44 SGB I), which, however, did not constitute the subject of the objection proceedings.
Whether the granting of a monetary benefit that is silent on the issue of interest under Section 44 of the German Social Code, Book I (SGB I), implies a tacit rejection of interest depends on the circumstances of the individual case.
Mere official silence in the context of a decision on the granting of higher benefits under Sections 41 et seq. of the German Social Code, Book XII (SGB XII) does not contain an explicit statement – neither positive nor negative – regarding interest on the back payment amount granted by the social welfare office.
Mere silence, in principle, contains neither an affirmative nor a negative expression of will, but no expression whatsoever.
The only exception is if there are special circumstances in the individual case.
This is not the case simply because the interest claim is dependent on the principal claim, and the social welfare office is obligated to decide on any interest claim of the benefit recipient ex officio, even without a separate application. The principal claim and the interest claim must always be communicated in two independent (substantive) administrative acts, which can be issued simultaneously in the same decision or at different times in separate decisions.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Hamburg State Social Court, Judgment of 31 July 2020 – L 4 AS 322/19
Regarding the reimbursement of court and legal fees incurred in a civil lawsuit with his landlord as accommodation costs, he denied this.
Guidance (Editor)
1. It is conceivable that the court and attorney fees incurred in connection with the defendant's request to reduce costs could be considered an ancillary benefit to the plaintiff's potential entitlement to benefits pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (BSG, Judgment of November 24, 2011, B 14 AS 15/11 R; LSG NRW, Decision of May 22, 2012, L 6 AS 2275/11 B), with the consequence that he would not have been required to apply for the more specific legal aid and assistance with court costs in this respect.
2. The plaintiff is not entitled to reimbursement of the claimed court and attorney fees by the defendant. The requirements of the principles developed by the Federal Social Court (BSG) – due to the lack of a statutory basis for such a claim – according to which the costs of civil proceedings can be covered as an ancillary benefit to benefits pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), are not met in the plaintiff's case.
Source: socialcourtsability.de
2.2 – State Social Court of Saxony-Anhalt, decision of 02.06.2020 – L 4 AS 167/20 B ER – legally
binding: No assumption of maintenance costs
Guiding principle (Editor)
1. No assumption of maintenance costs, because according to the wording of Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), the question of the economic (partial) unusability or particular hardship of a sale plays no role (LSG Saxony-Anhalt, decision of October 22, 2015, – L 4 AS 431/15 B ER).
2. An entitlement to housing and heating allowances due to unavoidable expenses for maintenance and repair pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) exists only for residential property of reasonable size within the meaning of Section 12 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2.3 – State Social Court of Saxony-Anhalt, decision of 19 May 2020 – L 4 AS 113/18 NZB – legally binding
Matters under the German Social Code, Book II (SGB II) (AS) – On the comparison of economic efficiency pursuant to Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II)
From the ruling:
“Regarding the legal situation in general, the following should be noted: The provision in Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), allowing for the waiver of the cost-reduction request and/or the subsequent reduction of benefits, serves as a reminder to SGB II benefit providers to observe the budgetary principle of efficiency and economy in administration, even when deciding on housing and heating benefits (see Luik in: Eicher/Luik, SGB II, 4th ed. 2017, Section 22, marginal note 151). If, as a result of the forced relocation, higher budgetary resources are required than if the recipient remained in the apartment, it is economically unreasonable to demand a move. According to the legislator's intent, this provision serves exclusively the interests of the (municipal) benefit provider and does not establish any subjective rights for the benefit recipient (see the explanatory memorandum to the draft bill: Bundestag printed matter 17/3404, page 98; Bundesrat printed matter 17/3404, page 18). 161). This is an exception to the rule in Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). The decisive factor is the specific circumstances of the individual case. The benefit provider makes an individual predictive decision as to whether refraining from a cost-reduction request is more economical. Given the multitude of possible scenarios, the question cannot be resolved in principle.
A criterion that will likely be frequently considered in these individual case decisions is how long the benefit recipient is expected to remain receiving benefits. Leaving benefits in the near future, either due to taking up employment or entering retirement, or an impending increase in the number of members in the household (e.g., due to pregnancy), are conceivable aspects of an individual case that could render a move uneconomical. In its ruling of June 15, 2016 (Case No.: B 4 AS 36/15 R, juris RN 25), the Federal Social Court (BSG) stated that the aspect of economic efficiency can also be relevant if the special needs of disabled individuals result in additional costs due to necessary renovations or a reorganization of care following a move. Furthermore, it should be noted that the ancillary costs associated with a move (moving expenses, rental deposits or the purchase of cooperative shares, renovation costs) can vary considerably from case to case – also depending on the individual benefit recipient's ability to help themselves. These must be included in the cost-effectiveness comparison.
Numerous scenarios are conceivable for which an abstract, fundamental clarification is not possible. The primary application of economic considerations within the meaning of Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), is likely the balancing of high heating costs with low rent, or vice versa, in the sense of the "reasonable gross rent including utilities," which is not explicitly provided for by law. Therefore, it is self-evident from the above explanations that the decisive factor is the actual total costs (including the annual utility bills) and less so the monthly payments with their included advance payments for utilities
Source: socialcourtsability.de
2.4 – Hessian State Social Court, Judgment of 26 September 2018 – L 6 AS 581/18 – Appeal allowed.
Regarding the consideration of expenses for liability insurance for rental damage, here affirmed.
Principle (Editor):
The costs of a tenant's private liability insurance are considered accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if the tenancy agreement makes it mandatory for the tenant to take out such insurance and the accommodation costs are reasonable (Hamburg Higher Social Court, judgment of August 9, 2012, L 4 AS 367/10 and Berlin-Brandenburg Higher Social Court, judgment of November 19, 2008 – L 10 AS 541/08).
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 16 July 2020 – L 10 AS 886/19 – Appeal allowed.
Guidance note (Editor):
1. No deviation from the head-share principle in the case that the member of the household entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) does not receive benefits under the AsylbLG.
2. Application of the needs-based share method only to the members of the household who are entitled to benefits under the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
2.6 – LSG North Rhine-Westphalia, Judgment of 8 November 2019 (L 21 AS 497/19):
Guiding principle Dr. Manfred Hammel:
The cost decision in an objection decision issued by the job center as an independent regulation is not rendered moot by the issuance of the final decision announced in an ALG II matter within the meaning of Section 39 Paragraph 2 SGB X.
A claim for reimbursement of costs based on Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) can only be asserted if this legal remedy has been remedied or granted by the Jobcenter.
An objection was unsuccessful insofar as it was formally rejected, or insofar as the objector did not prevail with his substantive request.
This must also be affirmed if the job center rejects an objection as inadmissible, the objector has in turn made the substantive decision announced within the objection decision binding, i.e. formally legally valid, and this person has only challenged the cost decision separately.
The decisive factor here is purely the outcome of the objection proceedings. The reasons for the unsuccessful objection are irrelevant. The legality of the contested decision should not have to be reviewed in the subsequent cost proceedings after the objection proceedings have concluded.
An objection raised against a preliminary decision issued pursuant to Section 41a Paragraph 1 of the German Social Code, Book II (SGB II) does not always become inadmissible after the expiry of the approval period stipulated therein.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Trier, judgment of August 21, 2020 – S 4 AS 186/18
Determination of income according to § 11 para. 2, 3 SGB II in the case of back payments of sickness or unemployment benefits
Principle (Juris)
1. Back payments of sickness or unemployment benefits that are not made for the month of receipt are, according to § 11 para. 3 sentence 2 SGB II, one-off income.
2. Solely on the grounds of a discrepancy between the statutory due date and the actual payment, a teleological reduction of the norm is not possible according to the wording of the law if the person in need of assistance is not responsible for this discrepancy.
3. It is therefore irrelevant whether the benefits are provided “seamlessly” in the month following the due date (deviation from SG Berlin, judgment of 18 January 2019, file number S 37 AS 12211/18).
Source: www.landesrecht.rlp.de
3.2 – SG Hildesheim, Judgment of 11.09.2020 – S 26 AS 816/18
Requirements for a coherent concept for determining appropriate accommodation needs
Principle (Juris):
The addition of existing rents to a purely supply-based concept does not constitute an improvement, but rather a new concept based on a different approach.
Any rectification is limited to the period stipulated in Section 44 Paragraph 4 of the German Social Code, Book X (SGB X), in order to safeguard the legal right to a fair procedure.
A different composition of the existing rents used for benefit recipients under SGB II, SGB XII and WoGG in the comparison areas of a district violates Article 3 of the Basic Law.
Substandard rents can be ruled out according to the concept developer's own investigation, although a general lack of marketability cannot be assumed.
Source: www.rechtsprachung.niedersachsen.de
4. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
4.1 – The conclusive concept (KdU) of the Limburg-Weilburg Job Center for the Weilburg area is unlawful, a contribution by attorney Franz-Emanuel Bosin
More information: www.anwalt.de
4.2 – Pension insurance coverage for benefit recipients under the German Social Code, Book II (SGB II)
The fact that recipients of benefits under the German Social Code, Book II (SGB II), are only "reported" to the responsible pension insurance institution since January 1, 2011, but (mandatory) contributions to pension insurance are not payable, does not, according to a decision of the Federal Social Court (BSG) of June 30, 2020, open the possibility of an appeal on points of law under the aspect of the protection of property pursuant to Article 14 of the Basic Law (GG).
Commentary by attorney Prof. Dr. Hermann Plagemann, Plagemann Rechtsanwälte Partnerschaft mbB, Frankfurt am Main, from beck-fachdienst Sozialversicherungsrecht 18/2020 dated 25.09.2020
This case review is part of the bi-weekly specialist service on social security law. In addition to further detailed analyses of key recent rulings in social security law, it includes supplementary summaries of legal principles and an overview of relevant newly published articles. Furthermore, a news section informs you about important developments in legislation and practice in social security law. Further information and a quick order option can be found at www.beck-online.de
details can be found
Further rsw.beck.de
4.3 – Sample submission to a judge regarding the unconstitutionality of basic benefits under the Asylum Seekers' Benefits Act can be found
here: freiheitsrechte.org and here: tacheles-sozialhilfe.de
4.4 – No minimum subsistence level for refugees in collective accommodations?
More information: www.lto.de
4.5 – Rent freeze, rent caps, rent reductions and rent freezes, and the “reasonable costs for accommodation and heating” – Or: The Job Center does not pay the full rent due to the rent freeze.
An article by attorney Kay Füßlein, Berlin
Since the beginning of the year, the Berlin Rent Control Act (MietenWoG Bln) has been in effect. According to this law, certain maximum rents apply in Berlin, which may not be exceeded.
Whether all of this is compatible with the constitution is highly controversial. In civil litigation, the postman delivers the legal documents to the law firm's door because they no longer fit in the mailbox… It's all highly complicated, and nobody REALLY knows what concrete advice to give.
More information: www.ra-fuesslein.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
