1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – Federal Social Court, Judgment of 03.09.2020 – B 14 AS 37/19 R
Unemployment benefit II – Accommodation and heating – Three-person household in Berlin – Request to reduce costs – Adequacy assessment – Lack of a coherent concept from the basic income support provider – Determination of abstract adequacy values by the court based on a qualified rent index – Necessity of the court verifying the actual availability of suitable accommodation on the housing market
SGB II: Courts are not allowed to establish their own conclusive concept – housing costs cannot be based on average values from a rent index
Guiding principle (Editor):
Social courts may not determine reasonable housing costs based on the average values of a simple rent index. While the rent index may be used in cases of doubt, it must then also be determined whether a sufficient number of apartments are actually available on the market at the stated rents.
Source: www.rechtrecht-im-internet.de
Note:
See also BSG, judgment of 03.09.2020 – B 14 AS 40/19 R
1.2 – BSG, judgment of September 3, 2020 – B 14 AS 34/19 R
Unemployment benefit II – Accommodation and heating – Adequacy assessment – Single-person household in Bavaria – Requirements for the coherent concept of the basic income support provider – Judicial review – Tribunal's evaluation of evidence – Review by the court of appeal – Lack of representativeness of the data collection
Rent ceiling in the absence of a coherent concept: Housing benefit table plus 10% (guidance by lawyer Dr. Jens-Torsten Lehmann).
Source: socialcourtsability.de
Note:
Guiding principle Dr. Manfred Hammel:
It cannot be derived from Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), that a conclusive concept developed by a job center to specify accommodation-related costs must meet the requirement that, for sufficient data representativeness, a data basis of at least ten percent of the apartments in the housing market under consideration must always be used, outside of qualified rent indices.
The requirements for the "sample size" depend in particular on the size and structure of the housing market (homogeneous or rather heterogeneous housing stock resulting in significant rent differentiation) as well as the specific design of the concept. The required size of the ultimately usable data set in each individual case cannot be determined generally, but rather depends primarily on how reliably a given sample represents the population.
Among the legal requirements for a coherent concept that fulfills the conditions of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), is the requirement that it prevents the development of "hotspots" due to social segregation. Regarding the determination of reference rents, the job center may not only select "cheap" neighborhoods, but must instead consider the average values of the lower rent level across the entire relevant comparison area, provided that apartments with a basic standard of living are available in all neighborhoods.
The upper value of the rent range corresponding to the appropriateness criterion of Section 22 Paragraph 1 Sentence 1 SGB II can be determined by the SGB II provider without legal error on the basis of inventory data sets of the recipients of unemployment benefit II (Sections 19 et seq. SGB II) and of assistance for subsistence (Sections 27 et seq. SGB XII).
1.3 – BSG, Judgment of 3 September 2020 (B 214 AS 37/19 R):
Guiding principle Dr. Manfred Hammel:
For a household consisting of three persons in the state of Berlin, a living space of 80 square meters in rented apartments is to be considered appropriate within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II.
The weighted average values of the rent index tables for basic residential areas in Berlin do not reflect the net rents excluding utilities that are to be considered abstract within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). The "conviction that the potentially reasonable and thus abstractly appropriate net rent can be determined most fairly by including the average rent index values in weighted proportions" does not result in a general availability of housing at this price level for people receiving unemployment benefit II.
1.4 – BSG, Judgment of October 14, 2020 (B 4 AS 14/20 R):
Guiding principle Dr. Manfred Hammel:
The "immediate bonus" granted by a person receiving ALG II (unemployment benefit II) due to a change of electricity supplier must be considered by the job center as a one-off income to be taken into account in accordance with § 11 para. 1 sentence 1 SGB II (German Social Code, Book II).
This is a net capital inflow that reduces the need for benefits and is available to a recipient of unemployment benefit II as a resource that can be freely used at any time to cover their needs.
This bonus is not based on any (proportional) refund of flat-rate payments already made for electricity consumption, which would constitute a saving in a standard needs-related item (Section 20 Paragraph 1 Sentence 1 SGB II: "household energy"). The "immediate bonus" lacks, in particular, an economic connection to electricity consumption and advance payments made, since the payment of this amount occurred just a few weeks after the start of the contract and regardless of the amount of electricity consumed, i.e., without any offsetting against advance payments.
Section 22 paragraph 3, second half-sentence of the German Social Code, Book II (SGB II) does not apply here.
Source: socialcourtsability.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, Judgment of 23 September 2020 – L 19 AS 728/20 – Appeal pending before the Federal Social Court – B 14 AS 77/20
Guidance (Editor)
On the legality of an integration administrative act pursuant to Section 15 Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II), which – in connection with the assignment of a nine-month integration measure – was issued with an indefinite period of validity “until further notice” subject to review at the latest after six months.
Source: socialcourtsability.de
2.2 – North Rhine-Westphalia State Social Court, decision of 13 January 2021 – L 7 AS 1874/20 B ER – legally binding
Full accommodation costs for bar operators
Guidance (Editor):
If a person entitled to benefits also works in the apartment, the qualification of the entire accommodation as a dwelling is not called into question, as long as these are rooms that otherwise meet the definition of a dwelling.
Source: socialcourtsability.de
Note:
Full accommodation costs for bar operators
If an apartment also serves as an office, this does not change its qualification as an apartment, as long as office and living spaces cannot be separated from each other.
Source: www.juris.de
2.3 – Thuringian State Social Court, Judgment of 05.11.2020 – L 9 AS 322/19 – legally binding
The social security provider must cover the costs of participation in the youth initiation ceremony
According to a recently published ruling by the Thuringian State Social Court (LSG), the Saalfeld-Rudolstadt district job center must pay a benefit recipient €60 for attending a youth initiation ceremony. The organizer had charged €100 for the event. The plaintiff applied for reimbursement of the costs, which the social security provider rejected. The job center appealed the ruling in favor of the plaintiff by the Meiningen Social Court, but the LSG dismissed the appeal – except for a minor point.
According to Section 28, Paragraph 7 of the Second Book of the German Social Code (SGB II), those entitled to benefits are granted support for participation in social and cultural life in the community until they reach the age of 18. This explicitly applies to membership fees in the areas of sports, games, culture, and social activities, but also to lessons in artistic subjects (e.g., music lessons).
According to the ruling, the youth initiation ceremony is a comparable cultural activity within the meaning of Section 28 Paragraph 7 of the German Social Code, Book II (SGB II), so that benefits from the Education and Participation Package must generally be granted. However, this only applies to the participation fees charged by the organizer, not to other expenses (clothing, catering costs, etc.).
These benefits are also legally limited to a capped monthly amount (here, €10 in 2017, currently €15). This caused a problem because the plaintiff had already received €60 for the first half of the year for another activity, thus exhausting his budget. However, because the plaintiff did not claim any benefits in the second half of the year, the Higher Social Court (LSG) considered the entire calendar year and ordered the job center to pay €60. The plaintiff must bear the remaining €10 exceeding this maximum amount himself.
This also applies to the costs incurred because the plaintiff did not make use of the option of reduced participation fees for recipients of SGB II benefits (the organizer had granted this group of people a discount of 30 EUR).
The decision is legally binding.
Source: Press release of the Erfurt Higher Social Court No. 3/2021 dated February 3, 2021
2.4 – State Social Court of Saxony-Anhalt, Judgment of 22 July 2020 – L 4 AS 647/18
The plaintiff's obligation to submit an application for early retirement pension is affirmed here
Guiding principle (Editor)
- The length of the application deadline is not regulated by law. A rigid requirement would also be inappropriate. According to the Senate (see LSG Saxony-Anhalt, decision of November 18, 2016 – L 4 AS 550/16 B ER), a short deadline can still be reasonable if the applicant and the benefit provider have already discussed the pros and cons of the application. However, this deadline should not be less than one week.
- However, an excessively short deadline cannot render the request invalid. It would, however, only allow for the alternative application to be submitted after the expiry of a reasonable deadline (LSG Saxony-Anhalt, decision of March 1, 2016 – L 5 AS 25/16 B ER).
Source: socialcourtsability.de
Note: Legal principle (Juris)
- The regulation of Section 6 of the Unfairness Ordinance, which came into force on January 1, 2017, does not apply to cases in which the objection procedure was already concluded before December 31, 2016, with the objection decision as the last administrative decision.
- A valid integration agreement does not prevent the benefit provider from requesting the benefit recipient to apply for early retirement benefits (§ 12a sentence 2 no. 1 SGB II), since no atypical circumstances can be derived solely from the conclusion of an integration agreement (cf.: 5th Senate of the LSG Saxony-Anhalt, B v 12 April 2017, L 5 AS 340/16 B ER, juris RN 30).
2.5 – Baden-Württemberg State Social Court, Judgment of 17 November 2020 – L 9 AS 479/17
Guidance note (editor):
Consideration of repayment installments on two real estate loans as needs for accommodation and heating, here denied.
Principle (Juris)
- Regarding the assumption of repayment obligations on real estate loans as costs of accommodation on a self-occupied house property.
- Explanations regarding the factual basis of the legal dispute, such as information on the claimed accommodation costs, relieve the administration and courts of further investigations if no further or differing facts relevant to the decision are apparent (following BSG, judgment of 03.12.2015 – B 4 AS 49/14 R -).
Source: socialcourtsability.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Leipzig, decision of 27 May 2020 – S 24 AS 817/20 ER
Principle (Juris)
- Corona emergency aid is neither to be considered as income within the meaning of Section 11 Paragraph 1 SGB II nor as business income within the meaning of Section 3 Paragraph 1 Sentence 2 ALG II-VO (juris: Alg II-V 2008).
- Operating expenses may only be deducted from operating income to the extent that they are not already covered by Corona emergency aid.
- Any portion of Corona emergency aid exceeding operating expenses is not taken into account in the calculation of benefits.
Full text on Juris
3.2 – SG Speyer, Judgment of 15 January 2021 – S 15 AS 250/19
The obligation to reduce costs pursuant to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) only applies if a concrete, needs-based and appropriate alternative accommodation is known; expenses for accommodation and heating in multi-person households are not to be determined according to the "per capita principle"
Principle (Juris)
- Reducing accommodation costs by moving out is objectively always possible for benefit recipients (§ 22 para. 1 sentence 3 SGB II), if and insofar as they can effectively release themselves from contractual obligations to pay expenses.
- A cost reduction through relocation can only be considered reasonable (§ 22 para. 1 sentence 3 SGB II) if alternative accommodation, which is both needs-based and appropriate within the meaning of § 22 para. 1 sentence 1 half-sentence 2 SGB II, can be obtained instead of the accommodation currently occupied (cf. BSG, judgment of 07.11.2006 – B 7b AS 18/06 R –, para. 22; BSG, judgment of 07.11.2006 – B 7b AS 10/06 R –, para. 25; BSG, judgment of 27.02.2008 – B 14/7b AS 70/06 R –, para. 17; BSG, judgment of 19.03.2008 – B 11b AS 43/06 R –, para. 20; BSG, judgment of 18.06.2008 – B 14/7b AS 44/06 R –, para. 19). For regardless of how the indeterminate legal concept of “reasonableness” is to be specified in the context of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), it follows from the constitutional right to a guaranteed minimum standard of living as a minimum requirement for the reasonableness of cost reduction that this must not lead to homelessness.
- This requires not only that "appropriate" vacant housing exists on the relevant regional housing market during the period in question (to be defined more precisely by specifying the concept of appropriateness in Section 22 Paragraph 1 Sentence 1 Half-Sentence 2 of the German Social Code, Book II), but also that the benefit recipient must have been aware of at least one concrete alternative accommodation option during the period in question (following the ruling of the Social Court of Speyer, judgment of May 9, 2018 – S 16 AS 1339/16 –, para. 44).
- A benefit recipient's obligation to reduce costs exists only if a concrete, reasonable, and appropriate alternative accommodation is available and known to the benefit recipient. However, there is no obligation to search for accommodation, as the law does not attach any negative consequences to benefit entitlements simply for failing to search for accommodation (following the ruling of the Social Court of Speyer, judgment of May 9, 2018 – S 16 AS 1339/16 –, para. 49).
- The question of whether the provision of Section 22 Paragraph 1 Sentence 1 Half-Sentence 2 of the German Social Code, Book II (SGB II) is unconstitutional due to its vagueness, a question on which the Federal Constitutional Court has not yet ruled in its decisions of October 6, 2017 (1 BvL 2/15 and 1 BvL 5/15) and October 10, 2017 (1 BvR 617/14 and 1 BvR 944/14) (see Social Court Speyer, decision of December 29, 2017 – S 16 AS 1466/17 ER –, paragraphs 63 et seq.), is not relevant to the decision in the present proceedings.
- In multi-person households, expenses for accommodation and heating are to be allocated as a need to the persons who actually incur the expenses, i.e., those who are actually subject to a corresponding claim. However, there is no legal basis for a division based on the number of capitas (following the decisions of the Social Court of Mainz, referral order of 12 December 2014 – S 3 AS 130/14 –, para. 289 et seq., the Social Court of Speyer, decision of 17 August 2017 – S 16 AS 908/17 ER –, para. 31 et seq. and the Social Court of Speyer, decision of 29 December 2017 – S 16 AS 1466/17 ER –, para. 36; contrary to the Federal Social Court, judgment of 23 November 2006 – B 11b AS 1/06 R –, para. 28 et seq.; judgment of 31 October 2007 – B 14/11b AS 7/07 R –, para. 19).
Source: www.landesrecht.rlp.de
3.3 – SG Aurich, Judgment of 02.09.2020 – S 55 AS 386/18
Principle (Juris):
Failure to take up employment without a valid reason can constitute socially unacceptable misconduct within the meaning of Section 34 Paragraph 1 of the German Social Code, Book II (SGB II).
The duration of the causal link between such socially unacceptable misconduct by a benefit recipient and the benefit suspension provisions of the German Social Code, Book III (SGB III), can be limited to a period of three months.
Source: www.rechtsprachung.niedersachsen.de
3.4 – SG Dortmund, decision of 21.01.2021 – S 33 AS 2357/19 ER
Guidance (Attorney Johannes Christian Heemann, Dresden):
In the event of a change of location and jurisdiction, the previously responsible authority must continue to provide the services until they are continued by the now responsible authority (see Section 2 Paragraph 3 Sentence 1 SGB X).
4. Decisions of the State Social Courts and Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Baden-Württemberg, judgment of January 20, 2021 – L 3 AL 1926/20
Principle (Juris)
- Unemployed employees on partial retirement receive a privileged calculation of unemployment benefits based on a fictitious wage they would have received without partial retirement, only until the point in time when they can first claim an old-age pension – possibly with deductions (following BSG, judgment of 15.12.2005 – B 7a AL 30/05 R).
- If an unemployed employee on partial retirement can claim an old-age pension for severely disabled persons with pension reductions, their unemployment benefit is calculated on the basis of the actual earnings received.
- The protection of the financial viability of unemployment insurance constitutes a justifiable reason for the different calculation of unemployment benefits for unemployed partial-retirement workers without pension entitlement and those who have a pension entitlement, even if the pension entitlement can only be realized by accepting deductions.
Source: socialcourtsability.de
Note:
Unemployment benefits for employees on partial retirement are not calculated preferentially based on a fictitious wage.
4.2 – SG Bremen, decision of 02.02.2021 – S 17 AL 10/20
Guidance (Attorney Johannes Christian Heemann, Dresden):
If an objection is unlawfully rejected as inadmissible, a lawsuit can be filed to seek the isolated annulment of the objection decision in order to realize the affected party's right to a decision on the merits in the preliminary proceedings, provided the objection was filed in due form and time.
Legal tip:
SG Duisburg, judgment of 26.04.2018 – S 49 AS 857/17
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Karlsruhe, Judgment of 12 January 2021 – S 12 SO 3577/18
Basic income support benefits under Chapter Four of the German Social Code, Book XII (SGB XII) – Deduction of contributions to funeral insurance from old-age pension income – Section 82, Paragraph 2, Sentence 1, No. 3 of the German Social Code, Book XII (SGB XII) – Adequacy of the funeral benefit
Regarding the appropriateness of contributions to a private funeral expenses insurance policy within the framework of the deductibility of expenses for income assessment under the law of social assistance according to the Twelfth Book of the German Social Code (SGB XII), here affirmed
Principle (Editor):
The plaintiff can demand that the defendant deduct her expenses for contributions to her life insurance in the amount of EUR 53.68 per month. Her private insurance contributions are, in principle, reasonable in both amount and amount within the meaning of Section 82 Paragraph 2 Sentence 1 No. 3 of the German Social Code, Book XII (SGB XII).
Source: socialcourtsability.de
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Lower Saxony-Bremen State Social Court, decision of 04.02.2021 – L 8 AY 118/20 B ER
Legal provisions: Sections 3, 3a AsylbLG, Section 2 AsylbLG – Keywords: Roma, Kosovo, stateless, submission of documents, passport requirement, non-abusive extension of stay
Guidance (Editor)
- Granting of provisional analogous benefits pursuant to Section 2 AsylbLG, taking into account the basic benefits provided pursuant to Sections 3 and 3a AsylbLG.
- This applies to the applicant who only turned 18 in 2020, as well as to the applicants who are only twelve, eleven and six years old respectively, because, due to the "self-influence" on the length of stay required by Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the abusive conduct of their parents or the applicants cannot be attributed to them, and they cannot be accused of their own intentional abusive conduct.
- Minor children, if they – unlike in this case – do not personally meet the eligibility requirements of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), can nevertheless claim the privileged benefits "even if" at least one parent living in the same household receives privileged benefits under Section 2 Paragraph 1 AsylbLG (see Oppermann/Filges in jurisPK-SGB XII, Section 2 AsylbLG (as of January 5, 2021), paragraphs 241 and 252 with further references). The respondent had already adopted this prevailing opinion on the interpretation of Section 2 Paragraph 3 AsylbLG in another preliminary injunction proceeding from 2019, following a court suggestion (- L 8 AY 14/19 B ER -).
Continued with attorney Sven Adam
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Unemployment Benefit II as a loan in legal disputes concerning BAföG (Federal Training Assistance Act), an article by attorney Helge Hildebrandt
The exclusion of students from ALG II (unemployment benefit II) constitutes a "special hardship" within the meaning of Section 27 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), until the conclusion of preliminary legal proceedings before the administrative court regarding benefits under the Federal Training Assistance Act (BAföG), with the consequence that trainees can receive ALG II (Hartz IV) as a loan during this period.
More information: sozialberatung-kiel.de
7.2 – The Humboldt Law Clinic has addressed the unconstitutionality of the 1a cuts in the Asylum Seekers' Benefits Act in a detailed, rigorous and well-founded 74-page “Working Paper”:
Further information: hlcmr.de and here: www.ggua.de
7.3 – Jobcenter Weimar: More money for initial apartment furnishings for Hartz IV recipients
Hartz IV recipients in Weimar can expect higher payments than the previous maximum of €1,500 for initial furnishing of their apartments. Following a ruling by the social court in Gotha, in which a mother and her child were awarded a higher sum, the job center in Weimar is now revising the flat-rate allowances.
More information: www.mdr.de
7.4 – Regarding the entitlement to digital devices for homeschooling / Submit applications now if needed!!!
For ALGII social assistance for refugees
All information and application forms can be found here: tacheles-sozialhilfe.de
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
