1. Decisions of the Federal Social Court on basic income support under the (SGB II)
1.1 – BSG, judgment of May 19, 2021 – B 14 AS 19/20 R
Basic income support for job seekers – reception center – accommodation costs
Guidance (Editor):
In principle, eligibility for benefits for accommodation and heating, based on the so-called monthly principle, depends on the extent to which the accommodation-related payment obligations due in a given month can be covered by the income and assets to be taken into account. The period for which the need is incurred is irrelevant. Therefore, the fees for using the accommodation facility can, under certain conditions, be covered by subsidized benefits for accommodation and heating.
Source: www.bsg.bund.de
Note:
Attorney Volker Gerloff comments:
Federal Social Court ruling on the assumption of rent arrears from refugee accommodations
a) The claim from the "old" social welfare office is considered housing costs in the month it is due.
b) The job center at the place of residence at the time it is due must pay.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – LSG Hessen, judgment of April 30, 2021 – L 9 AS 361/17
Principle
1. If a person entitled to benefits inherits a house and land after the initial application and while receiving benefits under the German Social Code, Book II (SGB II), this is not considered an asset under the legal situation applicable until July 31, 2016, but rather income, which is only to be taken into account as reducing the need if it is actually available as a means to cover the need.
2. If a property is only marketable if a listed building is demolished, it is not usable as an asset if the sale is only possible with prior issuance of a demolition permit, this must be obtained by the potential buyer, and it is also uncertain whether the legally required consent for demolition will be granted.
Source: www.rv.hessenrecht.hessen.de
2.2 – LSG Berlin-Brandenburg, decision of 01.03.2021 – L 14 AS 63/21 B ER
Social court proceedings – preliminary legal protection – balancing of interests – basic income support for job seekers – unclear eligibility for benefits – consideration of assets during the Corona pandemic – no final clarification of substantial assets – granting of benefits – obligation to secure the property with real property rights – registration of the mortgage in the land register – co-ownership share in a property
Principle:
The obligation to provide provisional benefits under the German Social Code, Book II (SGB II), can be made dependent on a real security interest. (Paragraph 9)
Source: gesetze.berlin.de
2.3 – LSG Berlin-Brandenburg, judgment of April 20, 2021 – L 10 AS 802/19
Amount of the subsidy for contributions to private health insurance – unavoidable additional needs (§ 21 para. 6 SGB 2)
Principle (Editor):
The recognition of an unavoidable additional need (§ 21 para. 6 SGB II) requires that a switch to the basic tariff was omitted due to a lack of consultation and not for other reasons, such as better benefits in the agreed tariff (Judgment of the Bavarian State Social Court of July 7, 2020 – L 16 AS 327/18). The latter is precisely the case here.
Source: gerichtsverkauf.brandenburg.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Magdeburg, judgment of April 9, 2021 – S 27 AS 2762/13
Matters under the German Social Code, Book II (SGB II) (AS)
Principle
1. The analytical spatial category "central area" is a suitable basis for deriving a homogeneous living and residential area.
2. Within the scope of its freedom of methodology, the defendant basic income support provider could choose a concept for the empirical derivation of the appropriateness values for the costs of accommodation that is based on a frequency-oriented approach in the sense of quantifying supply and demand and setting the limit of appropriateness where an adequate supply of housing for the persons concerned is ensured.
3. The advance payments for heating costs collected at the same time as the values for accommodation costs, and the average calculated therefrom, do not constitute a reliable determination of an abstractly appropriate heating cost price for the relevant rental housing market.
Source: www.landesrecht.sachsen-anhalt.de
4. Decisions of the social courts on employment promotion law (SGB III)
4.1 – Social Court Mannheim, judgment of March 31, 2021 (S 17 AL 528/19):
Guiding principle Dr. Manfred Hammel:
Funding from the placement budget pursuant to Section 44 Paragraph 1 Sentence 1 SGB III for the financing of relocation costs is also justifiable if a recipient of unemployment benefit I has already countersigned the employment contract for taking up new employment at a location two and a half hours' drive away before submitting a corresponding application.
Even in such circumstances, there is a causal relationship between a previously unemployed person taking up employment and their dependence on special support services.
It would not be in the interest of a swift return to employment if applicants registered as unemployed always had to wait for a positive decision on their funding application from the employment agency before being allowed to accept a job offer.
When implementing the discretionary provision arising from Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book III (SGB III), the employment agency must take into account the specific circumstances of each individual case in detail and use them as the benchmark for its decision regarding the improvement of integration opportunities, mobility and the termination of unemployment.
A rejection should not be based solely on reference to the budgetary situation and central budgetary principles.
A limitation whereby, according to existing guidelines, the employment agency can only cover a partial amount of necessary relocation costs (here: EUR 2,000) regardless of the actual amount of these expenses (here: over EUR 4,000), and funding from the placement budget may not be provided in full, cannot be derived from either the wording of Section 44 of the German Social Code, Book III (SGB III), or from the specific meaning and purpose of this provision.
Instead, an individual decision on approval must be made at this point, i.e., the employment agency must examine the specific circumstances of the respective interests and the life situation of the applicants as well as their economic capacity and appropriately include these in the balancing decision (here: unemployed mother of two children as applicant, whose husband had no income at the time of application).
Note:
Relocation costs for job seekers
Those who want to end their unemployment quickly may have to accept a job in a distant location. Often, this is unavoidable without relocating. For an entire family, however, this can be expensive. This is where the employment agency's placement budget can help. The Mannheim Social Court has clarified that the employment agency must consider each case individually when making its decision.
Further information: www.dgbrechtsschutz.de
5. Decisions of the State Social Courts and Social Courts on Social Assistance (SGB XII)
5.1 – LSG Baden-Württemberg Judgment of 25 March 2021 – L 7 SO 2344/19
Principle (Juris):
The provider of integration assistance, as the second rehabilitation provider contacted, must examine the requested participation benefit according to all applicable legal bases. Here: Therapy tricycle as a service for medical rehabilitation.
Source: lrbw.juris.de
5.2 – LSG Munich, Judgment of 29.04.2021 – L 8 SO 217/20
Title:
Benefits, health insurance, disability, integration assistance, cost reimbursement, decision, pension insurance, employee, appeal, notice of objection, social assistance, approval, rehabilitation, wages, participation in working life, participation in life, reimbursement of costs
Guiding principles:
1. Section 18 Paragraph 7 of the German Social Code, Book XII (SGB XII) stipulates, among other things, that the providers of integration assistance (or formerly the providers of social assistance) are exempt from the requirements of Section 18 Paragraphs 1 to 5 of the German Social Code, Book IX (SGB IX) with regard to all entitlement bases to be examined.
2. There is no entitlement to benefits for participation in an artistically oriented event of an inclusive theatre under the aspect of medical rehabilitation or participation in working life.
Source: www.gesetze-bayern.de
5.3 – Lower Saxony-Bremen State Social Court of 03.05.2021 – L 8 SO 47/21 B ER
No obligation to change care facilities due to disability
The LSG Celle-Bremen has ruled that disabled nursing home residents do not have to move against their will to a facility for people with disabilities.
The right to integration assistance hinges on upholding human dignity and self-determination. The free choice of disabled individuals to decline integration assistance must be respected and honored. The autonomy, personal responsibility, and self-determination of disabled individuals take precedence over supposedly better support services. Since the man's care needs are met in his current residence, he remains entitled to have the remaining costs of his care covered. By denying him this support, the social services office exerted undue pressure.
Source: Press release of the LSG Celle-Bremen No. 12/2021 dated 25.05.2021
6. Decisions on asylum law and the Asylum Seekers' Benefits Act (AsylbLG)
6.1 – Federal Administrative Court decision of 27 May 2021 – Case No.: 1 C 36.20
No separate prior obligation to grant national protection against deportation when the asylum procedure is continued pursuant to Section 37 Paragraph 1 of the Asylum Act
An (isolated) action for a declaratory judgment establishing a prohibition of deportation pursuant to Section 60 Paragraphs 5 and 7 of the Residence Act is not admissible if the asylum procedure is to be continued by the Federal Office for Migration and Refugees (Federal Office) pursuant to Section 37 Paragraph 1 Sentence 2 of the Asylum Act following a favorable preliminary judicial decision.
Further information: www.juris.de
6.2 – LSG Mecklenburg-Vorpommern, decision of 26.04.2021 – L 9 AY 7/21 B ER
Matters under the Asylum Seekers' Benefits Act
Principle
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. (Adhering to the ruling of the Higher Social Court of Neustrelitz of May 11, 2020 – L 9 AY 22/19 B ER = ZFSH/SGB 2020, 524)
Source: www.landesrecht-mv.de
Note:
See also Hessian State Social Court – Decision of 13 April 2021 – Case No.: L 4 AY 3/21 B ER
tacheles-sozialhilfe.de and Düsseldorf Social Court: Social Court refers question to the Federal Constitutional Court regarding the amount of benefits for asylum seekers www.justiz.nrw.de
6.3 – Social Court Kassel – Decision of 19 May 2021 – S 12 AY 8/21 ER
Legal norms: Section 1a AsylbLG, Section 2 AsylbLG – Keywords: Unconstitutionality of Section 1a Paragraph 7 AsylbLG, standard benefit level 2, collective accommodation, communal accommodation
Guidance (Editor Tacheles eV)
1. The regulation in § 1 para. 1 sentence 2 AsylbLG contradicts the constitutional requirements mentioned in the judgment of the Federal Constitutional Court of 5 November 2019 (1 BvL 7/16) ((cf. Saxon State Social Court, decisions of 11 January 2021, L 8 AY 10/20 B ER and of 3 March 2021, L 8 AY 8/20 BER).
2. The same applies, according to the case law of the Chamber (SG Kassel, inter alia judgments of 19 November 2020, S 12 AY 56/20 and S 12 AY 44/20) and that of the HLSG (decision of 13 April 2021 – L 4 AY 3/21 B ER), also with regard to Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG as well as Section 3a Paragraph 1 Sentence 1 No. 2 b) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 b) AsylbLG.
3. Regarding the existence of significant constitutional concerns regarding the granting of benefits to asylum seekers living alone in communal accommodation (see LSG Hessen, 13.04.2021 – L 4 AY 3/21 B ER and referral decision of the SG Düsseldorf, decision of 13 April 2021, S 17 AY 21/20).
Source: Attorney Sven Adam
7. Miscellaneous information on Hartz IV, social assistance, asylum law, housing benefit law and other legal codes
7.1 – Social Law Information (SOCIAL LAW JUSTICE June 2021) by Bernd Eckhardt
The editorial in the current issue deals with SGB II debts in insolvency proceedings. The current case law is presented in detail. At this point, I would like to draw your attention once again to the last issue of SOZIALRECHT-JUSTAMENT (Social Law Justice), May 2021. This issue contains a revised version of my frequently used explanations of the "modified inflow theory," which forms the basis for the crediting of income under SGB II. The new version supersedes all previous versions.
Source: sozialrecht-justament.de and www.sozialrecht-justament.de
Note:
See, for example, the very recent decision of the Munich Higher Social Court (LSG München), judgment of May 18, 2021 – L 8 AY 122/20 – appeal allowed.
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
