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 September 17, 2020 – B 4 AS 22/20 R
Unemployment benefit II – Accommodation and heating – Adequacy assessment – Coherent concept – Data collection without considering existing rents – Operating costs
The benchmark for cold utility costs is the entire housing market.
Guidance www.evangelisch.de
Municipalities may only consider asking rents – that is, rents that property owners demand on the housing market – for a sound concept (Case No.: B 4 AS 22/20 R). Consideration of current existing rents is not mandatory. The only important thing is that the data is representative and that a sufficient number of asking rents are available.
Source: socialcourtsability.de
Note:
Guiding principle by Dr. Manfred Hammel:
For determining the appropriateness of housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the compilation of advertised rent concepts can be a suitable method for ascertaining a housing-related subsistence minimum, even if no existing rents have been collected. Valid statements regarding the affordability of housing for recipients of unemployment benefit II (Alg II) can also be derived from this data collection.
In this context, there is no obligation to take existing rents into account.
However, concepts based solely on advertised rents have shown that a sufficient number of apartments are actually offered at the determined reasonable price – particularly in comparison to the housing demand in the comparison area. A concept ultimately based on such a small number of advertised apartments that the conclusion that housing is generally available for rent at this price would not be justified would not provide a sufficient basis for determining abstractly reasonable housing costs.
It is not objectionable to use average values from surveys of actual operating costs—preferably local or regional—to determine the abstractly reasonable, "cold" operating costs. However, using such average values always presupposes that the data collection covers the entire housing market of the comparison area and not just apartments of basic standard with potentially low "cold" operating costs, or even just apartments of recipients of unemployment benefit II (ALG II). A significant portion of ALG II recipients would not accept such a value as reasonable within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
1.2 – BSG, judgment of 09/11/2020 – B 8 SUN 8/19 R
Social assistance – funeral expenses – reasonableness of bearing the costs – consideration of back payments of care allowance
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.
Read more at: nuernberger-blatt.de
Note:
Guiding principle Dr. Manfred Hammel:
The need for social assistance under Section 74 of the German Social Code, Book XII (SGB XII) represents a relief for persons obligated to arrange a funeral from expenses arising in this context, thus recognizing this obligation as a need for social assistance.
The assessment of the reasonableness of assuming funeral costs within the meaning of Section 74 of the German Social Code, Book XII (SGB XII) depends primarily on the specific circumstances of each individual case (Section 9, Paragraph 1, SGB XII).
The decisive point in time for the recognition of need or unreasonableness pursuant to Section 74 of the German Social Code, Book XII (SGB XII), is the due date of the funeral costs.
If a credit note for care allowance for self-procured care services pursuant to Section 37 Paragraph 1 of the German Social Code, Book XI (SGB XI) was received only after the death of the spouse, then the widow who had previously provided care would be considered a special legal successor pursuant to Section 56 Paragraph 1 Sentence 1 Number 1 of the German Social Code, Book I (SGB I), with respect to this social benefit payment. In this case, this constitutes an asset of this widow pursuant to Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII), which is protected from realization pursuant to Section 90 Paragraph 2 Number 9 of the SGB XII, provided that this sum can be considered a "small cash amount" within the meaning of Section 1 Sentence 1 Number 1 of the Implementing Regulation to Section 90 Paragraph 2 Number 9 of the SGB XII, or that the hardship provision arising from Section 90 Paragraph 3 of the SGB XII applies because a back payment of care allowance was received, which, for example, was offset by liabilities to other creditors arising from expenses for care.
If, however, the care allowance was credited before the husband's death, then this payment, like all amounts credited to the joint bank account before the death, falls into the estate. In the case of a joint account held by the spouses, this only applies to 50%; the other half remains the wife's property.
If, on the other hand, this was a single account of the deceased husband, for which the wife was merely granted power of attorney, then it can be assumed that the entire amount credited before the occurrence of the inheritance fell into the estate and was inherited by the wife and the daughter as the persons obligated to arrange the funeral (§ 1922 para. 1 BGB).
Full text: dejure.org
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Schleswig-Holstein State Social Court, Judgment of 19 May 2020 – L 3 AS 94/19 – Appeal pending before the Federal Social Court – B 4 AS 82/20 R
The Senate expressly abandons its previous case law (judgments of January 15, 2018, L 3 AS 100/15, L 3 AS 109/15 to L 3 AS 112/15, L 3 AS 5/16 to L 3 AS 10/16) concerning the district of Dithmarschen, according to which the entire district area was to be regarded as the comparison area.
Guiding principle (Editor):
A concept that leads to several housing market types with different adequacy values within a comparison area based on a "cluster analysis", such as the concept used by the defendant in 2016 during the period in dispute, does not meet the stated requirements, because there is no legal justification for such a further division of the cities and municipalities of a comparison area (Federal Social Court, judgments of January 30, 2019 – B 14 AS 11/18 R – and – B 14 AS 24/18 R).
Source: socialcourtsability.de
2.2 – North Rhine-Westphalia State Social Court, decision of 02.12.2020 – L 7 AS 993/20 B – legally binding
Does Section 41a of the German Social Code, Book II (SGB II) supersede the Unemployment Benefit II Ordinance (ALG II-VO) for income of self-employed individuals? Approval of legal aid
Guidance (Editor)
1. According to Section 41a Paragraph 4 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), a deviation from the calculation of an average income is permissible if – as in this case – the entitlement to benefits ceases for at least one month. This exception to the general principle of Section 41a Paragraph 4 Sentences 1 and 3 SGB II, which covers all types of income, also applies to income from self-employment, because the regulation does not contain any corresponding restriction to specific types of income (see also the judgment of the Higher Social Court of Berlin-Brandenburg of May 11, 2020 – L 18 AS 732/18).
2. It is doubtful whether, in the case of the income of self-employed business owners, recourse can be made to Section 13 of the German Social Code, Book II (SGB II) in conjunction with Section 3 Paragraph 4 of the German Ordinance on Unemployment Benefit II (Alg II VO). This is because, although the legislator was aware of the provision in Section 3 Paragraph 4 of the Alg II VO – which remains in effect even after August 1, 2016 – when creating the exception, this provision is superseded as a special rule by Section 41a of the German Social Code, Book II (SGB II) (see also the explanatory memorandum to the law, Bundestag printed matter 18/8041, page 52; cf. also the judgment of the Higher Social Court of Berlin-Brandenburg of May 11, 2020 – L 18 AS 732/18).
Source: socialcourtsability.de
2.3 – North Rhine-Westphalia State Social Court, decision of 17 December 2020 – L 12 AS 1601/20 NZB – legally binding
Guidance (Editor)
On the question of whether the limit of what is considered reasonable with regard to the needs for accommodation and heating in cases of energy-efficiently renovated accommodation should be increased by a “bonus”.
Guiding principle (Editor):
The limit of what is reasonable with regard to the costs of accommodation and heating is not to be increased by a "bonus" in cases of energy-efficiently renovated accommodations, because this follows directly from the law and the relevant case law of the highest courts.
Source: socialcourtsability.de
2.4 – Hamburg State Social Court, Judgment of 01.10.2020 – L 4 AS 66/19
To take into account additional expenses for travel to doctors and therapists
Guidance note (Editor)
1. Regarding the consideration of additional expenses for travel costs to doctors and therapists, rejected here.
2. The travel expenses claimed by the plaintiff constitute a recurring need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II). The claimed travel expenses are incurred regularly and not merely on a one-off basis.
3. However, in the present case there is no unavoidable special need, as no atypical need situation or significant deviation from an average need can be identified.
4. The 3-zone credit card, in itself, does not justify an above-average need. In 2014, it cost €32.60 per month for an annual subscription.
Source: socialcourtsability.de
Legal tip:
cf. Hessian State Social Court, judgment of 10 July 2019 – L 6 AS 565/17 – appeal pending before the Federal Social Court – B 4 AS 81/20 R (consideration of travel expenses in connection with medical and psychotherapeutic treatments as additional needs pursuant to Section 21 Paragraph 6 of the German Social Code, Book II, denied here) and Saxon State Social Court, judgment of 5 November 2020 – L 7 AS 83/17 (coverage of travel expenses for outpatient psychotherapy as additional needs pursuant to Section 21 Paragraph 6 of the German Social Code, Book II, within the framework of basic income support benefits).
2.5 – Berlin-Brandenburg State Social Court, decision of 08.12.2020 – L 14 AS 1531/20 B ER – legally binding
Preliminary legal protection – balancing of interests – securing a minimum standard of living – EU citizens with freedom of movement rights – bridging benefits – standard needs-related consumer spending
Principle (Juris)
1. Union citizens whose right of residence arises solely from the purpose of seeking employment may be entitled to benefits to secure their livelihood (bridging benefits) pursuant to Section 23 Paragraph 3 Sentence 6 Half-Sentence 2 of the German Social Code, Book XII (following the rulings of the Berlin-Brandenburg State Social Court of 11 July 2019 – L 15 SO 181/18 – and of 25 September 2020 – L 15 SO 124/20 B ER –, juris).
2. On the balancing of consequences in legally disputed subsistence benefits.
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Magdeburg, Judgment of 14.09.2020 – S 20 AS 2931/18
Matters under the German Social Code, Book II (SGB II); costs of accommodation and heating; a coherent concept in the Harz district
Principle (Juris):
If a concept is a revision of a concept that has been declared inconclusive, the original concept can be used to assess the revised concept; this follows from the nature of a revision.
The formation of a comparison area is flawed if it leads to the formation of ghettos.
Source: socialcourtsability.de
3.2 – Social Court Magdeburg, Judgment of 13 November 2020 – S 5 AS 213/15
Principle (Juris):
A concept for the reasonable costs of heating is inconclusive if the limit is determined in the median of all collected values for apartments of basic, medium and high-end fittings plus standard deviation to take into account a different heating behavior of the service recipient, since less favorable energy concepts in the basic apartment standard and significant deviations in expenses according to the type of heating would then not be adequately considered.
Source: socialcourtsability.de
3.3 – Social Court Dortmund, decision of December 9, 2020 (S 70 AS 4480/20 ER):
Guiding principle Dr. Manfred Hammel:
A job center is permitted, in accordance with Section 15 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II), to replace an integration agreement (Section 15 Paragraph 2 SGB II) with an administrative act issued by it, if this SGB II provider has made a great effort to conclude such an agreement and, in particular, has also granted the recipient of unemployment benefit II sufficient time to consider it, but this employable benefit recipient has not practiced constructive cooperation and has always rejected the job center's proposals.
This applies especially if the job center has also carried out a detailed potential analysis (§ 15 para. 3 sentence 2 SGB II).
However, the regulations stipulated in an integration administrative act do not do justice to the balance of rights and obligations required in relation to such a decision if the obligation of the recipient of unemployment benefit II to participate in a work opportunity (§ 16d SGB II) is described in this document as "support by the job center".
Such an administrative act, which merely outlines the obligations of the employable benefit recipient, lists only points regulated in the German Social Code, Book II (SGB II), and makes no mention whatsoever of support options offered by the job center in connection with professional reintegration, is more likely to provide a basis for possible sanctions (§§ 31 ff. SGB II) and thus represents an obviously one-sided and binding regulation.
3.4 – SG Aurich, Judgment of 27 October 2020 – S 55 AS 452/19
Principle (Juris):
The rent survey for the district of Leer (East Frisia) 2015, after its second revision, represents a coherent concept in accordance with case law for determining the limits of reasonableness for the costs of accommodation in the area of SGB II as well as SGB XII.
Source: www.rechtsprachung.niedersachsen.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – Berlin-Brandenburg State Social Court, Judgment of 05.11.2020 – L 14 AL 151/18
Start-up grant – expert opinion – exercise of discretion – priority of placement – case-by-case consideration – application activities
Principle (Juris)
1. Proof of viability by means of a statement from the expert body must be provided promptly after the application is submitted and before the applicants commence their full-time, self-employed activity.
2. The extent to which job vacancies must be pointed out during the placement process and the extent to which this must be documented depends on the individual situation, including the applicant's job application activities.
Source: socialcourtsability.de
4.2 – Berlin-Brandenburg State Social Court, Judgment of 26 November 2020 – L 14 AL 72/17
Unemployment benefits – fake cross-border workers
Principle (Juris):
When examining the status of a cross-border worker within the meaning of Regulation (EC) No 883/2004, the circumstances as to why the person employed abroad has not made more frequent trips home to visit family are generally irrelevant.
Source: socialcourtsability.de
4.3 – Berlin-Brandenburg State Social Court, Judgment of 26 November 2020 – L 14 AL 44/17 – Appeal allowed
Unemployment benefits – Employment in Switzerland – EU-Switzerland free movement agreement – German-Swiss agreement on unemployment insurance – Free movement of workers – Teleological restriction
Principle (Juris)
1. Social benefits or rights acquired by an employee solely under bilateral agreement law due to periods of employment in another Member State may not be revoked by Union law that supersedes this agreement law (reference to ECJ, inter alia judgment of 9 November 2000 – C-75/99 “Thelen” –, juris).
2. This applies accordingly if provisions of bilateral agreement law continue to apply after the (initial) entry into force of Union law due to express provisions and only later amended Community law supersedes these provisions (further development of ECJ, loc. cit.)
Source: socialcourtsability.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Hamburg State Social Court, Judgment of 05.11.2020 – L 4 SO 85/18
Cancellation and reimbursement of basic income support benefits – specificity within the meaning of Section 33 of the German Social Code, Book X (SGB X)
Principle (Editor)
1. The cancellation and reimbursement order is unlawful because it is not sufficiently specific.
2. It must be clear to the benefit recipient whether and to what extent they will retain monthly benefits to secure their livelihood, in order to adjust their behavior accordingly (Federal Social Court, Judgment of November 29, 2012 – B 14 AS 196/11 R, para. 17). Accordingly, a partial revocation of benefits to secure livelihood extending over several months is only sufficiently specific within the meaning of Section 33 Paragraph 1 of the German Social Code, Book X (SGB X), if the individual amounts changing for each month can be determined from the notice (Federal Social Court, Judgment of May 14, 2020 – B 14 AS 10/19 R). This is not the case with the revocation and reimbursement notice, so the notice is unlawful for this reason alone due to a lack of sufficient specificity.
3. This lack of specificity is not remedied by the notice of objection, as it also fails to specify how the amount to be reclaimed is calculated.
4. Finally, the violation of the principle of definiteness is neither curable under Section 41 Paragraphs 1 and 2 of the German Social Code, Book X (SGB X) nor disregarded under Section 42 of the German Social Code, Book X (SGB X), because it is not a formal error.
Source: socialcourtsability.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Bavarian State Social Court, Judgment of 11 December 2020 – L 8 AY 32/20
Reassessment of benefits pursuant to Section 3 Paragraph 5 of the Asylum Seekers' Benefits Act (AsylbLG)
Guiding principle (Editor):
No reassessment of benefits according to § 3 para. 5 AsylbLG, because this can only be done by law.
Guidance (Editor):
The lack of a new determination by the legislature cannot be enforced or replaced by a court order, as no competence to do so is apparent under constitutional requirements. Furthermore, Section 3 Paragraph 5 of the Asylum Seekers' Benefits Act (AsylbLG) does not specifically stipulate when the legislature must act; this is due to the discretion afforded to the legislature in determining benefits under the AsylbLG.
Source: socialcourtsability.de
Principle (Juris):
An official or judicial update of the necessary personal needs according to § 3 AsylbLG aF is not possible in the years 2017 to 2019 due to a lack of legislative action.
Legal tip:
a. Opinion: Lower Saxony-Bremen State Social Court, judgment of May 23, 2019 – L 8 AY 49/18; Bremen Social Court, decision of April 15, 2019 – S 40 AY 23/19 ER; Stade Social Court, judgment of April 11, 2019 – S 19 AY 5/19 – and most recently, Marburg Social Court – judgment of December 31, 2020 – file no.: S 9 AY 1/20
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Guidance: Minimum income and securing livelihood during stays for educational and employment purposes
Continue reading: ggua.de
7.2 – Thuringian State Social Court, decision of January 8, 2021 – L 9 AS 862/20 B ER
Job center obligated to purchase an internet-enabled computer and accessories for participation in homeschooling
In preliminary legal proceedings, the LSG Erfurt ordered a job center to procure an internet-enabled computer for participation in pandemic-related homeschooling.
Summary:
According to the State Social Court, the claimed costs constitute an unavoidable, ongoing additional need that must be recognized under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II). The need for the purchase of an internet-enabled computer and accessories for participating in school lessons at home is not included in the standard allowance. Therefore, the standard allowance no longer accurately reflects the applicant's needs, at least under the current circumstances of the pandemic. The purchase of an internet-enabled device became necessary with the closure of in-person classes on December 16, 2020, to realize the applicant's right to education and equal opportunities. During the pandemic-related closure of in-person classes, providing the applicant with such an internet-enabled computer allows her to access the Thuringian school cloud. This need is also unavoidable. The applicant's family only has an internet-enabled smartphone, which is unsuitable for using the school cloud. As things stand, no device will be provided by the school or any other third party.
The applicant, however, has no right to the device she selected, the price of which she stated in the administrative proceedings as €720 excluding printer cartridges. According to the German Social Code, Book II (SGB II), there is no entitlement to the best possible care, but only to the satisfaction of simple and basic needs. The applicant must therefore accept a cost-effective and, if necessary, used device that is suitable for her needs. The respondent can fulfill the obligation arising from the preliminary injunction by either providing the applicant with an internet-enabled device and accessories or, alternatively, by covering the costs of acquiring the aforementioned items, which the State Social Court estimates at a maximum of €500.
The resulting anticipation of the main issue is justified in light of the need to grant effective legal protection.
The decision is final.
Source: Press release of the Erfurt Higher Social Court No. 1/2021 dated January 19, 2021 , and full text here: sozialgerichtsbarkeit.de
Principle by lawyer Claudia Zimmermann:
1. The costs for the purchase of an internet-enabled computer and accessories for participation in pandemic-related homeschooling are not included in the standard allowance and generally constitute an additional need, which falls under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) in a constitutionally compliant interpretation (following the decision of the Higher Social Court of North Rhine-Westphalia of May 22, 2020, L 7 AS 719/20 B ER; following the decision of the Federal Social Court of May 8, 2019, B 14 AS 13/18 R).
2. In the event of school closures, the purchase of an internet-enabled device is necessary to realize the child's right to education and equal opportunities. The existing option of collecting schoolwork in printed form at school is not a suitable substitute for the modalities of computer use.
3. The acquisition of an item for ongoing use can also constitute an ongoing need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II). The sole determining factor is the existence of an atypical need situation that leads to a noticeable and lasting reduction in the subsistence minimum because a need arises for securing the subsistence minimum that deviates from average needs.
4. The need is unavoidable if the household of the person entitled to benefits only has one internet-enabled smartphone and third parties such as the school or school support association cannot provide a device. A smartphone is unsuitable for completing tasks and obtaining learning materials due to its small size.
7.3 – Entitlement to refugee status instead of subsidiary protection for Syrian conscientious objectors?
Please note the application deadline for subsequent asylum applications (February 19, 2021)!
On November 19, the European Court of Justice handed down an important ruling for Syrian conscientious objectors. A new guide, authored by Berlin lawyer Oda Jentsch, explains the implications of this decision for legal advice.
More information: www.der-paritaetische.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
