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 11, 2020 – B 8 SO 3/19 R
The plaintiff is being held liable for costs as heir.
Federal Social Court (BSG): Social assistance payments made in the form of a loan cannot be reclaimed by the heir
Guidance (Editor)
1. The defendant has no claim against the plaintiff as heir of her brother for reimbursement of costs.
2. When social assistance benefits are provided as loans, the loan repayment claim, as a debt originating from the deceased, reduces the value of the estate at the time of death. In this respect, the general civil law provisions apply to the determination of the estate's value, as the Federal Social Court (BSG) has already ruled. However, the repayment claim, which forms the basis of the deceased's debt, precludes a claim for reimbursement of costs (as a debt of the estate) relating to the same asset; the social assistance benefit provided as a loan cannot be reclaimed (or alternatively) by the social assistance provider through an administrative act.
Source: socialcourtsability.de
1.2 – Federal Social Court (BSG), Judgment of 28 January 2021 – B 8 SO 9/19 R
personal budget – time limit – amount
BSG: Personal budget must not be time-limited
A personal budget for disabled people paid as part of integration assistance cannot be subject to a time limit. While the needs of the disabled or ill person can be reassessed every two years, a general time limit on this form of support is not legally permissible, the Federal Social Court (BSG) in Kassel has now ruled. (Case No.: B 8 SO 9/19 R) As a result of this decision, those affected do not have to repeatedly reapply for integration assistance due to a time limit.
Source: www.haeusliche-pflege.net and Report No. 5/21 of the Federal Social Court dated January 28, 2021
1.3 – BSG, judgment of 01/27/2021 – B 14 AS 42/19 R
Exclusion from benefits – EU citizens – no exclusion from benefits if a right of residence exists pursuant to Article 10 EU Regulation 492/2011 for children in education and their parents exercising custody – no exclusion from SGB II benefits for EU citizens with a mini-job
Other residence rights of children and caring parents that preclude exclusion from SGB II benefits may also arise from rights acquired by children of workers to continue their education pursuant to Article 10 of Regulation (EU) 492/2011.
Principle (Editor)
1. A mini-job can save the Hartz IV entitlement for EU citizens and the plaintiffs were not excluded from benefits under the SGB II because they can invoke a right to freedom of movement under Art. 10 VO (EU) No 492/2011 (cf. BSG of 3.12.2015 – B 4 AS 43/15 R).
Source: www.bsg.bund.de
Legal tip:
See also BSG, judgment of 27.01.2021 – B 14 AS 25/20 R
Note:
Federal Social Court (BSG): Minijob can save Hartz IV entitlement for EU citizens
Even a mini-job can establish eligibility for Hartz IV benefits for EU citizens who have entered Germany. The Federal Social Court ruled this in two cases. This applies particularly if the children attend school in Germany.
A court ruling has established that even marginal employment can entitle EU citizens who have entered Germany to Hartz IV benefits. The Federal Social Court (BSG) ruled on Wednesday in two separate cases that entitlement to unemployment benefit II exists all the more if the children attend school in Germany and the marginally or part-time employed parents therefore have a right of residence. (Case numbers: B 14 AS 25/20 R and B 14 AS 42/19 R) The judges in Kassel thus implemented the jurisprudence of the European Court of Justice. Since January of this year, the legal exclusion of EU citizens with children attending school in Germany from receiving Hartz IV benefits has been lifted.
More information: www.migazin.de
1.4 – BSG, judgment of 01/27/2021 – B 14 AS 35/19 R
Accommodation and heating needs – headboard principle
Regarding the application of the head-of-household principle when determining the recognized need for accommodation and heating, if a relative of the beneficiary, who is himself excluded from benefits under the German Social Code, Book II (SGB II), stays in his apartment every two weeks on weekends and occasionally during holiday periods.
Guidance (Editor)
1. In addition to simplifying administration, the header principle serves in particular to allocate needs to persons who are not subject to any obligations under a tenancy agreement, such as often the children of a family.
2. However, it also serves to distinguish the needs of those receiving benefits under the German Social Code, Book II (SGB II) living in an apartment from the needs of other persons who may be using the same apartment. This is because the purpose of Section 22 Paragraph 1 of the SGB II is not to allow financially capable relatives of a person receiving benefits under the SGB II to live in that person's apartment free of charge.
3. A deviation from the principle of equal shares in favor of the plaintiff requires needs-based reasons. These could, in particular, be precluded by a claim of the daughter under Section 27 of the German Social Code, Book II (SGB II).
Source: www.bsg.bund.de
Note:
Jobcenter may have to cover rent even if training is subsidized.
If the employment agency funds the vocational training of a child of a Hartz IV recipient, the job center cannot leave the mother to shoulder the full cost of her rent. Even if the trainee continues to live in the mother's household but cannot pay the rent, the job center may, in exceptional cases, be obligated to continue covering the full housing costs due to hardship
Source: www.evangelisch.de
and Federal Social Court: People in need of assistance should not fall through the cracks
In individual cases, the job center must also pay accommodation costs for a child if the child is not entitled to Hartz IV benefits. This requires a special need and exceptional hardship, as the Federal Social Court (BSG) in Kassel ruled on Wednesday. The court emphasized that those in need must not fall through the cracks of the social welfare system – in this case, Hartz IV and employment promotion.
Read more at: nuernberger-blatt.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Lower Saxony-Bremen State Social Court, Judgment of 08.09.2020 – L 7 AS 354/19 – The appeal is admitted
Principle (Juris):
The insurance allowance of 30.00 euros is not to be deducted multiple times in one month from income from social benefits – in this case child benefit – in accordance with the decision of the Federal Social Court of 17 July 2014 (B 14 AS 25/13 – BSGE 116, 194).
Source: www.rechtsprachung.niedersachsen.de
Legal tip:
a. Opinion of the Berlin-Brandenburg Higher Social Court, 17.09.2015 – L 31 AS 1571/15 – Consideration of a back payment of child benefit as income; Multiple deduction of the insurance allowance
2.2 – State Social Court of Saxony-Anhalt, Judgment of 24 June 2020 – L 2 AS 832/17 – legally binding
Consideration of a discounted "job ticket" obtained through the employer when calculating income for benefits under the German Social Code, Book II (SGB II) – income in kind – Section 2 Paragraph 6 Sentence 2 of the former version of the German Social Code, Book II (SGB II-V aF)
Guiding principle (Editor):
A job ticket subsidized by the employer is not to be considered as income in kind and therefore as further income within the meaning of Section 11 Paragraph 1 SGB II aF.
Principle (Juris)
1. On the question of whether the concept of income in monetary value in Section 11 Paragraph 1 Sentence 1 SGB II aF requires that the income can be sold for money and has a market value.
2. Section 2 paragraph 6 sentence 2 of the former version of the German Social Code, Book II (SGB II) precludes the crediting of income in kind even if the beneficiary has already had to spend more money to receive it than is taken into account for the corresponding expenditure in the standard allowance.
Source: socialcourtsability.de
2.3 – Hessian State Social Court, decision of 15 December 2020 – L 6 AS 554/20 B ER
The job center requested that the applicant apply for an early retirement pension from the statutory pension insurance scheme.
Guidance (Editor):
The request of the benefit recipient to apply for an early retirement pension (as well as the subsequent application by the benefit provider on behalf of the benefit recipient pursuant to Section 5 Paragraph 3 Sentence 1 of the German Social Code, Book II) is also otherwise in accordance with constitutional law.
Principle (Juris)
on the interpretation of § 6 Unfairness Ordinance
Source: socialcourtsability.de
2.4 – Berlin-Brandenburg State Social Court, decision of 12 January 2021 – L 14 AS 1694/20 B ER – legally binding
Basic income support for job seekers – local jurisdiction of the basic income support provider – residency requirement
For refugees or those granted asylum, the responsible agency is solely the one in whose territory the person entitled to benefits is required to reside according to Section 12a, paragraphs 1 to 3 of the Residence Act. Only there, taking into account the limited freedom of movement rights in this respect, can the jurisdiction of a job center be established.
Guiding principle (Editor)
1. Section 12a of the Residence Act establishes a local jurisdiction of the benefit provider that deviates from Section 36 Paragraph 1 of the Social Code, Book II, not only when a specific individual residence requirement is imposed pursuant to Section 12a Paragraph 2 or 3 of the Residence Act, but also when the general statutory residence requirement of Section 12a Paragraph 1 of the Residence Act applies.
2. Even in the case of a residence requirement pursuant to Section 12a Paragraph 1 of the Residence Act, the jurisdiction of the job center can only be established in the area where the applicants are required to reside.
Legal tip:
see also LSG Berlin-Brandenburg, decision of June 26, 2017 – L 31 AS 618/17 B ER; LSG Mecklenburg-Vorpommern, judgment of September 21, 2020 – L 10 AS 373/9 18 –; LSG Lower Saxony-Bremen, decision of March 5, 2018 – L 15 AS 32/18 B ER; Böttiger, in Eicher/Luik, SGB II, 4th ed. 2017, § 36 para. 49c; Hlava, in Gagel, SGB II / SGB III, 79th supplement September 2020, § 36 SGB II para. 35; See also LSG Hamburg, decision of 8 May 2017 – L 4 AS 114/17 B ER, contrary to LSG North Rhine-Westphalia, decision of 17 March 2017 – L 7 AS 228/17 B ER, decision of 20 January 2017 – L 19 AS 2381/16 B ER, decision of 12 December 2016 – L 7 AS 2184/16 B ER, L 7 AS 2185/16 B).
Source: socialcourtsability.de
2.5 – Berlin-Brandenburg State Social Court, Judgment of 17 September 2020 – L 14 AS 563/18
Integration into employment – Training/further education to become a physiotherapist – Analogous application of the German Social Code, Book III (SGB III) – Financial security for the third year of the program – Binding effect of a legally binding judgment
Basic income support for job seekers: Benefit for vocational training measures – securing livelihood as a condition for approval of a basic income support recipient
Principle (Editor)
1. The view that the financing to be secured pursuant to Section 180 Paragraph 4 Sentence 2 of the German Social Code, Book III (SGB III) must also cover subsistence may be correct for beneficiaries under the SGB III. However, the Senate sees no reason to extend this to beneficiaries under the German Social Code, Book II (SGB II) – such as the plaintiff (similarly, the Higher Social Court of Berlin-Brandenburg, decision of August 11, 2016 – L 25 AS 1611/16 B ER –; Social Court of Berlin, decision of November 1, 2016 – S 137 AS 14835/16 ER).
2. In the case of a recipient of basic income support for job seekers, it is not necessary to assume, as a condition for granting a vocational training measure, that the financing of living expenses during the last third of the training is secured.
Principle (Juris)
1. Insofar as Section 180 Paragraph 4 Sentence 2 of the German Social Code, Book III (SGB III) applies to employable benefit recipients under the German Social Code, Book II (SGB II), I do not have to extend the financial security for the entire duration of the measure to cover living expenses.
2. On the binding effect of a legally binding judgment that affirms the prerequisites for an entitlement to further training measures pursuant to Section 16 Paragraph 1 Sentence 2 No. 4 of the German Social Code, Book II (SGB II) in conjunction with Section 81 of the German Social Code, Book III (SGB III).
Source: socialcourtsability.de
2.6 – North Rhine-Westphalia State Social Court, Judgment of 10 December 2020 – L 7 AS 1634/18
Regarding the assumption of childcare costs
Principle (Editor)
1. The plaintiffs' claim for reimbursement of childcare costs does not follow from Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
2. An atypical special situation that allows for the assumption of a need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), does not arise solely from the fact that the plaintiffs had a particularly large number of children to care for, because they were not bound by obligations outside the home – in particular gainful employment – and were able to perform the childcare duties together.
3. The assumption of childcare costs as moving expenses pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), which would only be relevant for the moving days, is not possible because the plaintiffs carried out the move with the help of a moving company and were not present during the move, but went for a walk.
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 05.01.2021 – S 32 AS 3077/16
Reasonable costs for accommodation and heating in the Harz district
Guidance (Editor)
: The concept for determining the appropriate expenses for accommodation and heating in the Harz district is conclusive.
Source: socialcourtsability.de
3.2 – Munich Social Court, Judgment of 17 January 2021 – S 46 AS 1930/19
Cancellation of the approval of unemployment benefit II due to receipt of a pension and the resulting reimbursement
Guidance (Editor)
1. The question here is whether a benefit recipient, or specifically the plaintiff, who receives a pension for the first time at the end of a month, had to know that this pension would be retroactively credited against unemployment benefit II from the beginning of the month.
2. The plaintiff was not required to know this. Her very considerations regarding her needs—that the March pension payment must be used for the April rent—demonstrate that she was making very obvious considerations in the opposite direction. There is no basis for arguing that she should have known about the illegality of the original approval.
3. The contested decision was therefore to be overturned.
Source: socialcourtsability.de
3.3 – Social Court Neuruppin, judgment of 21 January 2021 – S 26 AS 77/20 and of 25 January 2021 – S 26 AS 1127/19
Benefits as a subsidy – Home ownership – Basement room not living space
Guiding principle (Editor):
The floor area of the basement room must be disregarded when determining living space.
Guidance (Editor)
1. ALG II was to be paid as a subsidy, because the relevant living space limit of 99 square meters, increased by ten percent, is not exceeded by the building used by the plaintiff and her partner.
2. Because the basement room in question is not to be taken into account when determining the living space.
Source: socialcourtsability.de
3.4 – Social Court Neuruppin, judgment of 08.12.2020 – S 26 AS 933/19
Cancellation and repayment of ALG II benefits is unlawful – income with repayment obligation
Principle (Editor)
: Remuneration that is already subject to a (valid) repayment obligation upon receipt is not considered income (cf. Federal Social Court judgment of June 17, 2010 – B 14 AS 46/09 R).
Source: socialcourtsability.de
3.5 – Duisburg Social Court, decision of 26 October 2020 – S 38 AS 3218/20 ER
Preliminary legal protection – Unemployment benefit II – Accommodation and heating – Assurance of coverage of accommodation costs for new accommodation – Necessity of moving due to attic apartment
Assurance of coverage of accommodation costs for new accommodation in expedited proceedings for mother and child if the move is necessary, in this case, moving out of the attic
Guiding principle (Editor)
1. In preliminary legal protection proceedings, a social security provider under Book II of the German Social Code (SGB II) cannot, as a rule, be compelled to issue an assurance within the meaning of Section 22 Paragraph 4 of Book II of the German Social Code (SGB II), but at most to provisionally cover the actual costs of accommodation and heating.
2. In this exceptional case, a commitment to cover the costs of accommodation and heating may be considered.
3. Moving to a better-designed apartment that is not located on the top floor is also understandable if the number of rooms does not increase, but the layout and square footage improve. Therefore, it can be assumed that even someone not receiving benefits with a small child would move from the top floor and ensure that the child and mother have their own room where furniture can be set up. The layout of the new apartment also allows the applicants to use the living space differently.
Source: socialcourtsability.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 4/20
Enforcement – Contract between service providers – Resolution of the governing body – Jurisdiction for issuing decisions on objections – Statute of limitations
Principle (Juris)
1. The job center is responsible for issuing decisions on objections, even in the case of a transfer of tasks pursuant to Section 44b Paragraph 4 of the German Social Code, Book II (SGB II).
2. Claims for reimbursement under Section 328 Paragraph 3 of the German Social Code, Book III (SGB III) are subject to a limitation period of 30 years.
3. Since the SGG – unlike the ZPO (§§ 732, 766, 767, 768, 771 – 774) – does not provide for any types of action specifically geared towards enforcement law in administrative enforcement proceedings, legal protection must be granted on the basis of the general procedural instruments of the SGG within the framework of its general procedural principles.
Source: socialcourtsability.de
4.2 – Berlin-Brandenburg State Social Court, Judgment of 26 November 2020 – L 14 AL 20/20
Unemployment benefit – (pseudo) cross-border workers – contribution assessment ceiling
Principle (Juris):
The German contribution assessment ceiling must also be applied when calculating unemployment benefits for cross-border workers within the meaning of Regulation (EC) No. 883/2004.
Source: socialcourtsability.de
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Karlsruhe, judgment of 13 February 2020 – S 12 SO 3012/19
Even after almost 40 years of marriage, a complete loss of libido in a 77-year-old husband does not necessarily lead to the conclusion that the husband wishes to permanently separate from his wife.
Principle (Editor)
1. The mere declaration of having dissolved the partnership is not considered sufficient. While a cohabiting relationship can be dissolved at any time without a legally regulated procedure, a sufficiently reliable determination is only possible if the decision to terminate is clearly documented by external circumstances (LSG Baden-Württemberg, Judgment of October 1, 2015 – L 7 SO 118/14).
It suffices if the circumstances characterizing the relationship between the spouses indicate that at least one spouse intends to permanently separate from the other spouse, thereby abandoning their existing marital relationship, and this is sufficiently clearly documented by external circumstances (LSG Baden-Württemberg, judgment of April 19, 2018 – L 7 SO 4981/14). Despite their differing objectives, the concepts of separation within the meaning of Section 27 Paragraph 2 Sentence 2 of the German Social Code, Book XII (SGB XII) and Section 1567 Paragraph 1 of the German Civil Code (BGB) will essentially overlap. Separation is possible, for example, even within the marital home. A (temporary) geographical separation – for instance, for professional reasons – does not, on the other hand, constitute separation and thus does not lead to the dissolution of the marital community.
Source: socialcourtsability.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Mecklenburg-Vorpommern State Social Court, decision of 21 January 2021 – L 9 AY 27/20 B ER
Matters under the Asylum Seekers' Benefits Act
Principle (Juris)
1. There are significant concerns regarding the constitutionality of the benefit levels regulated in Section 3a Paragraph 1 No. 2 Letter b and Section 3a Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) for adult benefit recipients without partners who are accommodated in reception facilities, communal living arrangements or comparable accommodations.
2. A constitutionally compliant interpretation of the provision requires that, as an unwritten element of the offense, the actual and verifiable communal household management of the benefit recipient with other persons housed in the collective accommodation is presupposed, for which the objective burden of proof (and, in expedited proceedings, the burden of presentation) lies with the benefit provider. (Adherence to the Senate's decision of May 11, 2020 – L 9 AY 22/19 B ER)
Source: www.landesrecht-mv.de
6.2 – SG Oldenburg, decision of 02.12.2020 – S 26 AY 44/20 ER
Right to a dignified minimum standard of living – preliminary injunction § 86b para. 2 sentence 2 SGG – balancing of interests – guarantee of legal protection Art. 19 para. 4 GG
Principle (Juris):
Due to significant constitutional concerns regarding the authorization to intervene in the fundamental right guaranteed by Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) in the constitutionally guaranteed right to a dignified minimum standard of living (from Article 1 in conjunction with Article 20 Paragraph 1 of the Basic Law), which has been developed by the legislator in Sections 3 and 3a of the AsylbLG, the benefit provider is obligated to provide benefits in accordance with Sections 3 and 3a of the AsylbLG by way of an interim injunction based on a balancing of interests.
Source: www.rechtsprachung.niedersachsen.de
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Higher Administrative Court for the State of North Rhine-Westphalia of 21 January 2021 – Case Nos. 11 A 1564/20.A, 11 A 2982/20.A
Those granted protection in Greece are currently not allowed to be returned
The Higher Administrative Court of Münster has ruled that asylum applications from persons granted protection in Greece may not, in principle, be rejected as inadmissible because, at least currently – subject to special circumstances of the individual case – there is generally a serious risk that, in the event of their return there, they will not be able to satisfy their most basic needs (“bed, bread, soap”) for a longer period of time.
Continue on Juris
7.2 – Crediting of income under the Asylum Seekers' Benefits Act (AsylbLG), Social Code Book II (SGB II) and Social Code Book XII (SGB XII) (January 2021) Note by Claudius Voigt
The following points in particular have been updated:
New standard benefit rates
• Increased allowance of 250 euros for expense allowances from voluntary work under SGB II, SGB XII and AsylbLG
• Increased allowance of 250 euros for pocket money during Federal Voluntary Service or Voluntary Social Year under SGB II and SGB XII
• Higher tax-free allowance for holiday jobs under SGB II (2,400 euros per year)
• Exemption from income assessment for Corona bridging aid
Source: www.einwanderer.net
7.3 – Income allowances for legal aid and court costs will decrease in 2021!
An article by attorney Helge Hildebrandt, Kiel
Continue here: sozialberatung-kiel.de
7.4 – BMAS @BMAS_Bund
50 million masks for people receiving basic income support:
10 FFP2 masks can be collected free of charge from pharmacies by letter.
Technician
Digital Devices for Children in Basic Income Support:
Job centers will in future cover the costs of devices specified by schools to enable participation in distance learning.
Source: twitter.com
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
