1. Decisions of the Federal Social Court on social assistance (SGB XII)
1.1 – Federal Social Court, judgment of 11 September 2020 (B 8 SO 22/18 R):
Guiding principle Dr. Manfred Hammel:
The distinction between a benefit for participation in community life (§§ 53 ff. SGB XII aF – §§ 76 ff., 77 SGB IX) and a benefit to cover accommodation-related needs (§ 35 SGB XII) always depends on whether, in the individual case, additional costs for housing arise solely due to the disability, which are either not covered, not fully covered, or not fully covered without restrictions by the benefits for securing subsistence (§§ 27 ff. SGB XII).
Benefits for the preservation of housing within the meaning of Section 77 Paragraph 1 Sentence 2 of the German Social Code, Book IX (SGB IX) must always be provided by the social welfare agency in consideration of the principle of individualized needs coverage (Section 9 Paragraph 1 of the German Social Code, Book XII (SGB XII)), and must, in individual cases, correspond to the special needs of disabled people living in their own housing so that they are able to lead a life that is as self-determined and independent as possible (Sections 4 Paragraph 1 No. 4 and 77 Paragraph 1 Sentence 1 of the German Social Code, Book IX (SGB IX)):
The assessment of the necessity of such a service is primarily based on its objectives and costs.
There is strong evidence to suggest that for a person with paraplegia living alone in their own home, both the installation of a thermostat in the bathroom as a measure to reduce the risk of burns to the lower body and a professionally installed shower floor drain with odor trap are suitable and necessary for this severely disabled person (degree of disability: 100; award of the disability markers "H", "G", "aG" and "B") who also suffers from bladder and bowel dysfunction, in order to enable them to lead an everyday, appropriate life and to live independently in their own home.
These are legitimate objectives within the framework of integration assistance as defined in Sections 76 et seq. of the German Social Code, Book IX (SGB IX) and Section 113 of the German Social Code, Book IX (SGB IX).
For costs of conversion measures that did not arise from measures required due to a disability, a claim for recognition of the corresponding expenses may be considered in accordance with Section 35 of the German Social Code, Book XII (SGB XII), provided that the expenses claimed in detail are to be regarded as necessary and appropriate.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Munich, Judgment of 12 December 2019 – L 7 AS 755/17 – Appeal pending before the Federal Social Court – B 14 AS 75/20 R
Title:
Dependent employment, amendment notice, third-party contributions, gross unfairness, appeal decision, SGB II benefits, payment claims, supervised visitation rights, motor vehicle liability insurance, income to be taken into account, gross rent excluding utilities, Social Security Remuneration Ordinance, cost reduction request, tip income, dependent employment, company pension scheme, benefit recipient, heating costs, Income Tax Act, definition of income
Guiding principle:
Tips must be taken into account as income within the framework of the German Social Code, Book II (SGB II).
Source: www.gesetze-bayern.de
Legal tip:
cf. LSG NRW, decision of 03.02.2019 – L 7 AS 1376/19 – legally binding
The question of whether tips earned in connection with employment as a taxi driver can be counted as earned income and thus reduce need is answered in the affirmative.
Tips are not considered income that is not to be taken into account under Section 11a Paragraph 5 of the German Social Code, Book II (SGB II).
Guidance (Editor)
1. The earned income received by the plaintiff as tips must be taken into account as reducing the need for assistance.
2. Earned income in the form of tips must also be treated as income under Section 11a of the German Social Code, Book II (SGB II). In particular, preferential treatment under Section 11a, Paragraph 5 of the SGB II is not applicable.
3. It is consistent that tips given in connection with an exchange agreement, for example in the catering industry, the taxi business or the hairdressing trade, are to be included in the assessable income of the activity performed (similarly SG Landshut judgment of 27.09.2017 – S 11 AS 261/16; Schmidt, in: Schlegel-Voeltzke, juris-PK-SGB XII, 2nd edition 2014, § 82 para. 60 – as of 13.08.2018; contra SG Karlsruhe judgment of 30.03.2016 – S 4 AS 2297/15).
2.2 – LSG Bayern, judgment of January 26, 2021 – L 11 AS 802/19
Application for approval of benefits for the initial furnishing needs of an apartment in connection with a move
Principle (Juris):
1. According to Section 6 Paragraph 1 Sentence 1 Number 2 of the German Social Code, Book II (SGB II), the independent cities and districts (municipal authorities) are responsible for granting benefits for initial equipment under Section 24 Paragraph 3 Sentence 1 Number 1 of the SGB II. The uniform implementation of basic income support for job seekers and the performance of tasks are carried out by a joint institution (Section 44b Paragraph 1 Sentences 1 and 2 of the SGB II). Local jurisdiction follows from Section 36 Paragraph 1 Sentence 2 of the SGB II, according to which the municipal authority in whose territory the employable person entitled to benefits has their habitual residence is responsible for the benefits under Section 6 Paragraph 1 Sentence 1 Number 2 of the SGB II. (Paragraph 20) (Editorial principle)
2. Benefits for initial equipment must be applied for separately from the responsible benefit provider in accordance with Section 37 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II). (Paragraph 21) (Editorial note)
3. Those entitled to benefits are entitled to move into an apartment equipped with necessary and appropriate furnishings and household appliances. This may require acquiring these items before moving day so that they are actually available after the move. It cannot be demanded that the person entitled to benefits first move into an empty apartment in order to then acquire the necessary items. (Paragraph 23) (Editorial note)
Source: www.gesetze-bayern.de
2.3 – Lower Saxony-Bremen State Social Court, Judgment of 06.04.2021 – L 13 AS 93/20
Basic income support for job seekers – final decision on initially provisionally granted benefit claims – calculation of an average income – no multiple deduction of the basic allowance and the employment allowances when wage payments for several months are received in one month – no distribution of a heating cost credit within the framework of an average income to be distributed
Principle (Juris)
1. When making the final determination of the entitlement to benefits after provisional approval pursuant to Section 41a Paragraph 4 of the German Social Code, Book II (SGB II), wages received within one month from two employment relationships earned in different months must be taken into account when calculating average income, without the basic allowance and the earned income allowance being deducted twice (distinction from the Federal Social Court's decision of July 17, 2014 – B 14 AS 25/13 R = BSGE 116, 194 = SozR 4-4200 § 11 No. 67).
2. Repayments and credits that are attributable to the need for accommodation and heating (here: repayment from heating cost statement) are not to be included in the calculation of the average income according to § 41a para. 4 SGB II, since § 22 para. 3 SGB II contains a more specific regulation for the consideration of such credits.
Source: www.rechtsprachung.niedersachsen.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Cottbus, judgment of 15 January 2021 (S 41 AS 1469/18):
Principle by Dr. Manfred Hammel:
A proper notification of legal consequences within the meaning of Section 31 Paragraph 1 Sentence 1 No. 2 of the German Social Code, Book II (SGB II) is not provided if it is not clear and unambiguous which conduct of the recipient of the decision constitutes a breach of duty: whether only the commencement of the offered activity may not be prevented or the continuation of this work may not be refused, or whether preventing the initiation of an employment relationship also leads to a reduction in benefits.
A job center must also address this important aspect at this point.
The use of the term "negative application behavior" is not sufficient in this context.
It must not be left to the employable person entitled to benefits (§ 7 para. 1 sentence 1 SGB II) to imagine for themselves what this specifically means, e.g. whether a breach of duty under § 31 para. 1 sentence 1 no. 2 SGB II can already be caused by conduct in the run-up to an application.
3.2 – Social Court Nuremberg, decision of 23 March 2021 – S 22 AS 182/21 ER
FFP2 masks as an additional need
Guidance (Editor):
Regarding the currently claimed additional needs, there was no basis for an order, because the applicant could reasonably be expected to make the necessary purchase from their own resources.
Source: www.gesetze-bayern.de
3.3 – Social Court Munich, decision of 10 March 2021 – S 46 AS 369/21 ER
FFP2 masks and SGB II
Principle (Juris)
1. For a hardship allowance pursuant to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), the individual case must be taken into account and the need that is objectively unavoidable in this life situation.
2. As a rule, a maximum of ten FFP2 masks per month are required for an adult. This cannot justify an additional need under Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) in expedited proceedings.
Source: www.gesetze-bayern.de
4. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
4.1 – LSG Schleswig-Holstein, judgment from February 19, 2021 – L 3 AL 18/18
Social law administrative procedure – Reimbursement of costs in preliminary proceedings – Reimbursement of legal fees – External advice – Lack of formal authorization – Necessity of retaining a representative – Amount – Necessary expenses for appropriate legal action – Examination fee – Consultation fee – Incurrence prior to preliminary proceedings
Principle
1. Reimbursement of legal fees for an objection procedure is also possible if the lawyer does not formally act as an authorized representative, but only advises the objector internally.
2. According to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), such costs can only be considered necessary if the involvement of an authorized representative within the meaning of Section 63 Paragraph 2 of the SGB X appears necessary and the costs that would have been incurred through formal appointment according to Section 63 Paragraph 2 of the SGB X are not exceeded.
Source: www.gesetze-rechtsprachung.sh.juris.de
5. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
5.1 – Lower Saxony-Bremen State Social Court, Judgment of 25 February 2021 – L 8 AY 19/18
Free legal proceedings for appeals in matters of asylum seeker benefits law in Lower Saxony
1. Section 64 of the German Social Code, Book X (SGB X) is neither directly nor analogously applicable to proceedings under the Asylum Seekers' Benefits Act (AsylbLG) (following the Federal Social Court's decision of 16 January 2019 – B 7 AY 2/17 R – juris para. 7 f.)
2. In Lower Saxony, for reasons of equal treatment (Article 3 Paragraph 1 of the Basic Law) and equality of access to justice (Article 3 Paragraph 1 of the Basic Law in conjunction with Article 20 of the Basic Law), the imposition of costs for an objection procedure in matters under the Asylum Seekers' Benefits Act (AsylbLG) is generally waived in accordance with Section 11 Paragraph 2 Sentence 2 of the Lower Saxony Administrative Costs Act (NVwKostG).
Source: www.rechtsprachung.niedersachsen.de
5.2 – SG Düsseldorf, referral decision of 13 April 2021 – S 17 AY 21/20
Attorney Volker Gerloff comments:
The basic needs allowance under Section 2b of the Asylum Seekers' Benefits Act (AsylbLG)* is being referred to the Federal Constitutional Court! Social Court Düsseldorf, referral decision of April 13, 2021 – S 17 AY 21/20
Let us hope that the Federal Constitutional Court accepts the case and makes a decision soon.
* Benefit reduction of 10% for single people/single parents in communal accommodations
Source: twitter.com
regarding the decision: https://t1p.de/pibq
Note:
See also: Asylum Seekers' Benefits Act (AsylbLG) benefit reduction for single persons in communal accommodations
More information: www.ggua.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
6.1 – Regarding the overturned rent cap in Berlin: Apply for back payments at the Jobcenter/Social Welfare Office as early as April 2021!! Action is required now!
Thanks to the efforts of CDU/CSU and FDP members of parliament, the Berlin rent cap was retroactively overturned by the Federal Constitutional Court. Landlords are delighted, the parties of the plaintiff politicians can expect substantial donations, and around 1.5 million Berlin households will face significant back payments.
Due to the retroactive declaration of invalidity of the Berlin rent cap, the affected Berlin households now have to retroactively pay the previously capped rent.
Important: This repayment obligation arises on the day the judgment is announced, i.e., from April 15, 2021, but at the latest from the day landlords demand payment from their tenants. In some cases, several thousand euros per household will have to be repaid.
In several cases, these households are entitled to have their costs covered by social welfare agencies. I've listed them below; for more details, please refer to the article on the Tacheles website:
Low- and middle-income earners and pensioners who are not receiving social benefits and cannot afford the rent arrears can apply for assistance from the job center or social welfare office. There is a legal entitlement to have the costs covered in the month they are due.
The arrears become due immediately following the Federal Constitutional Court's decision, i.e., in April 2021, but at the latest when the landlord demands payment.
Therefore, it is essential to submit an application as early as April 2021, but no later than the month in which the landlord claims the arrears.
This also applies to people receiving social assistance under Chapter 3 of the German Social Code, Book XII (SGB XII).
– For recipients of benefits under SGB II and SGB XII, Chapter 4 (note: this only applies to basic income support for the elderly and those with reduced earning capacity, NOT to recipients of social assistance), the rent arrears are to be covered as actual accommodation costs in the month they are due. It is not mandatory to submit an application in the month they are due.
– People receiving housing benefit or child supplement can also apply for reimbursement. Again, the application must be submitted in the month the payment is due.
It is irrelevant for the transfer of the claim whether funds have been set aside for a potential back payment or not. It is also important to submit applications with legally sound documentation. Proof of receipt is required via fax or email, as the aforementioned deadlines must be met. Berlin's tenants' associations and advisory services are now called upon to launch a short-term information campaign and inform those affected. Please ensure that the application is submitted in April, but no later than the month in which the landlord demands the back payment. All important information can be found on the Tacheles website: t1p.de/m1i5. In terms of content, the Federal Constitutional Court's decision is a dark day for Berlin tenants. However, it also makes it clear that a nationwide rent cap is needed; it is long overdue and necessary. The decision is met with joy by the CDU/CSU, FDP, and AfD. With 284 members of parliament themselves filing lawsuits, it is clear that a movement is urgently needed to fight for a nationwide rent cap and a change of government, because this is not possible with these parties in power.
Source: Tacheles
Editor's note:
Due to server maintenance, the website www.sozialgerichtsbarkeit.de currently unavailable.
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker
