1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court (BSG) judgment of 26 November 2020 – B 14 AS 23/20 R
Increased demand – cryopreservation of sperm cells
Guiding principle (Editor)
- The person in need of assistance has no right to reimbursement of the costs incurred for the cryopreservation of their sperm cells by the JobCenter, even if such costs are not included in the standard allowance.
- The requirements for an additional hardship allowance under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) are not met because the costs do not constitute an unavoidable, special need. They are not part of the fundamental right to a guaranteed minimum standard of living that ensures human dignity (Article 1 Paragraph 1 in conjunction with the social welfare principle under Article 20 Paragraph 1 of the German Basic Law).
Source: www.bsg.bund.de
1.2 – Federal Social Court (BSG) judgment of 26 November 2020 – B 14 AS 13/19 R
Refusal to perform – lack of cooperation – determination of employability
Assessments of incapacity for work must not be too old
The incapacity for work of recipients of Hartz IV benefits may not be proven with a medical report that is already four years old. If an unemployed person refuses to consent to the use of their medical records by the German Pension Insurance, this does not yet constitute a breach of their duty to cooperate.
Continue here: www.evangelisch.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Mecklenburg-Vorpommern State Social Court, Judgment of 11 November 2020 – L 10 AS 449/19
Principle (Juris):
If a recipient of benefits under the German Social Code, Book II (SGB II) sells scrap metal collected on a recurring basis and with the intention of repeating the sale, the earned income allowances must be deducted from the proceeds before they are credited against the unemployment benefit II.
Source: www.landesrecht-mv.de
2.2 – Berlin-Brandenburg State Social Court, Judgment of 14 October 2020 – L 32 AS 1288/15
Guiding principle (Editor):
Provision of benefits in kind pursuant to Section 24 Paragraph 2 of the German Social Code, Book II (SGB II) in cases of uneconomical behavior also through the direct payment of monthly electricity cost prepayments to the energy supply companies.
Source: socialcourtsability.de
2.3 – North Rhine-Westphalia State Social Court, decision of 05.11.2020 – L 7 AS 1395/20 B ER – legally binding
Loan-based benefits for rent and health insurance – Section 27 Paragraph 3 SGB II – Hardship clause
Guidance (Editor):
Undue hardship exists in particular if – as in this case – a need for assistance has arisen due to a training situation which cannot be met otherwise and there is reasonable cause to believe that the training which is about to be completed will not be finished without the granting of benefits.
Source: socialcourtsability.de
3. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
3.1 – Lower Saxony-Bremen State Social Court, decision of 10 November 2020 – L 8 SO 84/20 ER
Regarding the impact on the rejection of social assistance integration assistance up to the end of 2019 due to the entry into force of the law on integration assistance according to Part 2 of the German Social Code, Book IX (SGB IX) on January 1, 2020, and the elimination of the responsibility of the social assistance provider
Principle (Juris)
- The rejection of integration assistance by the social assistance provider is not otherwise resolved by the entry into force of the law on integration assistance according to Part 2 of the German Social Code, Book IX (SGB IX) on 1 January 2020 and the loss of its jurisdiction, pursuant to Section 39 Paragraph 2 of the German Social Code, Book X (SGB X).
- The introduction of the "new benefit" of integration assistance with a new provider does not, in principle, affect the jurisdiction of a rehabilitation provider already established under Section 14 of the German Social Code, Book IX (SGB IX) (in the period up to December 31, 2019), provided that this provider, as a legal entity, continues to be a rehabilitation provider within the meaning of Section 6 of the SGB IX from January 1, 2020. Section 14 of the SGB IX ensures continuity (in the legal sense) in the law on rehabilitation and participation of people with disabilities for the benefit of the person with a disability through the bindingly established jurisdiction of the rehabilitation provider.
- The question of a legal or functional successor of the provider of integration assistance instead of the provider of social assistance responsible for integration assistance until the end of 2019 is not decisive with regard to the status of the parties in the court proceedings if the legal entity involved is also locally and materially responsible for the requested services for the period from 1 January 2020 onwards.
- An entitlement to reimbursement of costs for additional support of sign language in the form of a home sign language course may arise as a benefit for participation in education, specifically as assistance with schooling within the framework of compulsory education, pursuant to Section 112 Paragraph 1 Sentence 1 No. 1, Sentence 3 of the German Social Code, Book IX (SGB IX), or as a benefit for social participation pursuant to Section 113 Paragraphs 1 and 2 No. 6 of the German Social Code, Book IX (SGB IX) in conjunction with Section 82 Sentence 1 of the German Social Code, Book IX (SGB IX).
- Regarding the rehabilitation provider's selection decision on a specific service provider, the right of the person with a disability to express their wishes and choose, and the cost comparison for comparable services (§ 104 SGB IX).
Source: www.rechtsprachung.niedersachsen.de
3.2 – Mannheim Social Court, decision of October 30, 2020 (S 3 SO 2144/20 ER):
Principle by Dr. Manfred Hammel:
On the obligation of the responsible social welfare agency to cover the costs of a sign language interpreter in the case of a hearing-impaired child attending a regular primary school, even during lessons in which special education teachers from the educational center are present, as a benefit for participation in education pursuant to Sections 90 et seq. of the German Social Code, Book IX (SGB IX) in conjunction with Section 99 of the SGB IX and Section 112 Paragraph 1 Sentence 1 No. 1 / Sentence 3 of the SGB IX.
The right to school support even during the presence of a special education teacher is not fulfilled simply because this social worker also provides interpreting services.
The principle of subsidiarity enshrined in Section 91 Paragraph 1 of the German Social Code, Book IX (SGB IX) does not apply if the disabled applicant can credibly demonstrate that they are continuously dependent on an interpreter with the skills of a certified interpreter in German Sign Language during spoken language instruction.
The social worker provides services in the core educational area. The work of an interpreter is an important supplementary measure that a social worker can only provide if they have demonstrable competence in German Sign Language. This is a prerequisite for the hearing-impaired applicant to communicate appropriately at school and to be able to follow lessons without barriers and, in particular, to participate fully. Even slight deviations in the execution of a sign can lead to completely different meanings.
3.3 – SG Gießen, decision of 29.10.2020 – S 18 SO 146/20 ER
Integration assistance in the form of a personal budget
In proceedings concerning integration assistance in the form of a personal budget, the Social Court of Gießen ruled that it is incompatible with the requirement of effective legal protection under Article 19 Paragraph 4 of the Basic Law to refuse the issuance of an interim injunction due to the lack of a target agreement and a corresponding assistance plan.
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4. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
4.1 – No double social benefits for children of separated parents
When children of divorced parents spend time with their mother and time with their father – a commentary on the North Rhine-Westphalia State Social Court ruling of August 13, 2020 – L 7 AS 535/19 – pending before the Federal Social Court (BSG) B 14 AS 73/20 R
More information: www.neues-deutschland.de
North Rhine-Westphalia State Social Court, Judgment of 13 August 2020 – L 7 AS 535/19 – pending before the Federal Social Court (BSG) B 14 AS 73/20 R
Principle (Editor):
According to the case law of the Federal Social Court (BSG), entitlement to social assistance for regular stays in two benefit units exists only for a total of 30 days per month.
Guidance (Editor):
Even if a person regularly resides in two different households receiving benefits, they are only entitled to the standard benefit for a total of 30 days per month (§ 41 para. 1 SGB II). The standard benefit covers the costs of regular living expenses; however, even with alternating residences, entitlement to standard benefits does not exceed 30 days. Therefore, for days on which the children in question spend less than twelve hours in the household of one parent, there is no entitlement to the standard benefit there (Federal Social Court judgment of June 12, 2013 – B 14 AS 50/12 R; Higher Social Court of Lower Saxony-Bremen judgment of March 24, 2015 – L 7 AS 1031/13).
Source: socialcourtsability.de
4.2 – Amendments to the Freedom of Movement Act as of November 13, 2020, a contribution by Claudius Voigt
Continue reading: ggua.de
4.3 – New brochures and working aids
Guidance: Entitlement to SGB II benefits for EU citizens with a right of residence according to Art. 10 of EU Regulation 492/2011 – School children with formerly employed parents (The Paritätische Gesamtverband / Claudius Voigt, GGUA Münster / November 2020)
More information: www.ggua.de
4.4 – The judgment of the Hessian State Social Court (LSG Hessen) on long-term bridging benefits is now legally binding
Recently, the first legally binding ruling by a state social court on the issue of bridging benefits for EU citizens excluded from regular social assistance was issued: The Hessian State Social Court ruled on July 1, 2020, that bridging benefits must generally be provided for the entire duration of the actual stay, even beyond one month, and that expressing a "will to leave" is not a prerequisite. The court stated that referring to the return journey and securing basic needs in the country of origin is not a legitimate reason for reducing or excluding the minimum subsistence level that guarantees human dignity. Hessian State Social Court, Judgment of July 1, 2020; L 4 SO 120/18
The social welfare office of the Kassel district appealed this ruling to the Federal Social Court. On October 20, 2020, the Federal Social Court dismissed the appeal as inadmissible (Federal Social Court, decision of October 20, 2020; B 8 SO 15/20 R), as the social welfare office had failed to submit either a statement of grounds for appeal or a request for an extension of time within the prescribed period. The judgment of the Higher Social Court of Hesse is therefore now legally binding.
Here are some further explanations regarding the very important aspects of the decision of the Hessian State Social Court.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
